ADA news news reviews to peruse.

              ADA NEWS
1998
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" News Reviews to Peruse"
Number 47 January 15, 1998
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.). This publication can also be located at http:// intradep/ reports. htm on the Department's Intranet website.
FEBRUARY IS BLACK HISTORY MONTH. You can visit a Yahoo category listing a number of websites with information about Black History Month at http:// www. yahoo. com/ Arts/ Humanities/ History/ U_ S_ History/ African_ American/ Black History_ Month. Also, 1998 is the 50th anniversary year of the Universal Declaration of Human Rights, proclaimed on December 10, 1948 by the General Assembly of the United Nations. Amnesty International has dedicated its website at http:// rights. amnesty. org to the observance of this anniversary year.
U. S. SUPREME COURT TO HEAR ADA CASE - The U. S. Supreme Court has accepted for review its first ADA- related case. In granting certiorari of the decision of the U. S. Court of Appeals for the First Circuit ( ME, NH, MS, RI) in Abbott v. Bragdon, the High Court let it be known that it will decide the questions whether asymptomatic HIV is a disability under the ADA and whether reproduction is a major life function under the Act. There is conflict among the circuit courts on these questions, as illustrated by the contradictory decision of the U. S. Court of Appeals for the Eighth Circuit in Krauel v. Iowa Methodist Medical Center, 95 F. 3d 674 ( 8th Cir. 1996) ( http:// www. wulaw. wustl. edu/ 8th. cir/ Opinions/ 960911/ 953768. P8)( see “ ADA News” No. 35, May 15, 1997 ( see, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews 39. htm). Oral arguments are scheduled for March, with a decision expected this year. Abbott v. Bragdon, 107 F. 3d 934 ( 1st Cir. 1997) ( http:// www. law. emory. edu/ 1circuit/ mar97/ 96- 1643.01a. html), cert. granted, 1997 U. S. LEXIS 7057 ( U. S. 1997).
WAL- MART FINED AGAIN FOR ADA VIOLATION - A jury in New Mexico has awarded nearly $ 3.6 million to a man who uses a wheelchair and who was refused employment by a Wal- Mart store because of his paraplegia in violation of the ADA. The man, who was denied employment by Wal- Mart at least six times, was allegedly told by the store’s personnel manager that Wal- Mart had “ no openings for a person in a wheelchair,” and by another manager that the store “ already had one of his kind in the garden center.” In fact, evidence presented at trial showed that Wal- Mart had more than 133 job openings at the time he applied, and that he was qualified for no less than 83 of those jobs. Wal- Mart managers testified at trial about the lack of ADA training. ( The jury award was reduced by the court to the maximum $ 300,000 available under the ADA for employers with 501 employees or more.) This marks the third time hefty damage awards have been imposed on Wal- Mart, including a $ 78,500 award to a deaf former employee in October 1997, and a $ 157,500 award in February 1997 to an applicant with one arm ( see “ ADA News” No. 38, April 15, 1997, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews_ 38. htm). EEOC v. Wal- Mart Stores, C. A. 94- 1076 LH/ LFG ( N. M. 1997).
SERVICE ANIMALS ARE MORE THAN “ SEEING EYE DOGS” - The U. S. Department of Justice recently settled a Title II complaint against Arizona Shuttle Service, which operates a van service in Phoenix. The service allegedly barred a woman with a mobility impairment from entering a van with her service animal. Although the service permitted “ seeing eye” dogs on its vans, it had barred service animals used by others. Under terms of the settlement with Justice, the service may now be used by all persons with disabilities and their service animals.
TELECOMMUTING NOT A REASONABLE ACCOMMODATION - Add another circuit to those where telecommuting, i. e., working from home via computer, modem, fax, etc., is not required as a reasonable accommodation under the ADA. The U. S. Circuit Court of Appeals for the Sixth Circuit ( OH, MI, KY, TN) recently decided that an employer did not have to accommodate a sales representative who had injured his back by allowing him to work from home. The Court went on to affirm the decision of the District Court that the sales rep was “ not otherwise qualified.” This decision is in agreement with similar holdings in the Fourth ( WV, MD, NC, SC, VA) and Seventh ( WI, IL, IN) Circuits, that telecommuting is not a reasonable accommodation except in rare cases where the job could be performed at home without a substantial reduction in performance. The Court also rejected an argument that the employer must permit the telecommuting accommodation because it had done so for another employee. According to the Court, “ An employer who provides an accommodation that is not required by the ADA to one employee is not consequently obligated to provide the same accommodation to other disabled employees.” Smith v. Ameritech, 1997 U. S. App. LEXIS 32784 ( 6th Cir. 1997)( http:// www. law. emory. edu/ 6circuit/ nov97/ 97a0343p. 06. html).
U. S. INFORMATION AGENCY BROADENS PROGRAMS - According to a USIA report, the agency has made efforts to include more people with disabilities in its international exchange programs. More than 200 persons participated in USIA- sponsored exchange programs in FY 1996.
EMPLOYERS’ LIABILITY INSURANCE - Employment practices liability insurance ( EPLI), relatively unheard of just a few years ago, is being offered by more carriers and purchased by greater numbers of employers in response to management concerns about the economic consequences of an explosion in employment litigation. Carried by only a few insurers in the early 1990s, it is now offered by approximately 40 carriers. These policies typically cover a sued employer for potential compensatory and punitive damages, back and front pay, and include the employer as well as its agents and employees, past and present.
MITIGATING MEASURES ADDRESSED BY PENNSYLVANIA CIRCUIT - The issue whether a determination of disability should be made regardless of mitigating measures, a question that has split the federal courts, has been decided in the Third Circuit ( PA, NJ, DE). The U. S. District Court for the Eastern District of Pennsylvania had found a man with epilepsy not to have a disability because his epilepsy had been controlled with medication. The Third Circuit reversed, holding that mitigating measures such as insulin or eyeglasses should not be considered when courts decide whether an individual has a disability under the ADA. This mirrors the EEOC view, which the Court said is due deference, as well as quoting from a House of Representatives report which indicated that Congress intended mitigate measures to be excluded from disability evaluations. Matczak v. Frankford Candy and Chocolate Co, CA3, No. 97- 1057, 11/ 18/ 97 ( released 12/ 24/ 97)( ftp:// ftp. vcilp. org/ pub/ law/ Fed- Ct/ Circuit/ 3d/ 97a1763p. asc)
The decision of the Third Circuit creates a 3- 2 split among federal courts that have addressed the issue. Similar positions have been taken by the Ninth ( CA, WA, OR, ID, NE, AZ) ( Holihan v. Lucky Stores Inc., 5 ADCases 1068; http:// www. vcilp. org/ Fed- Ct/ Circuit/ 9th/ opinions/ 9555409. htm) and Eleventh ( AL, GA, FL)( Harris v. H& W Contracting Co., 6 ADCases 460; http:// www. law. emory. edu/ 11circuit/ dec96/ 95- 8526. opa. html) Circuits. In contrast, the Fifth ( TX, LA) ( Ellison v. Software Spectrum, 5 ADCases 920; http:// www. ca5. uscourts. gov: 8081/ ISYSquery/ IRL13C7. tmp/ 1/ doc) and Sixth ( Gilday v. McCosta, 7 ADCases 348, see “ ADA News” No. 45, November 15, 1997, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews_ 45. htm) have each held that mitigating measures should be considered when deciding whether a claimant has a disability under the Act.
EMPLOYER LIABILITY FOR SUPERVISORS’ HARASSMENT - The U. S. Supreme Court has agreed to review a decision of the U. S. Court of Appeal for the Eleventh Circuit which dealt with whether an employer is liable for harassment by its supervisors ( Faragher v. City of Boca Raton, 111 F. 3d 1530 ( 11th Cir. 1997)( http:// www. law. emory. edu/ 11circuit/ apr97/ 94- 4878. op2. html). The Supreme Court is expected to clarify the rules governing an employer’s liability for the harassing actions of supervisors and co- workers.
MANDATORY ARBITRATION - The issue of mandatory arbitration of EEO claims - whether an employee covered by a collective bargaining agreement ( CBA) that includes anti- discrimination and mandatory arbitration clauses must first exhaust her remedies under the CBA before filing a claim with the EEOC - has been revisited periodically by federal courts, with no clear rule emerging. Two years ago, the U. S. Supreme Court let stand the decision of the U. S. Circuit Court of Appeals for the Fourth Circuit in Austin v. Owens- Brockway Glass Container, CA4, 5 AD Cases 488 ( 4th Cir. 1996) ( http:// www. law. emory. edu/ pub- cgi/ print_ hit_ bold. pl/ 4circuit/ mar96/ 941213. p. html? austin# first_ hit), in which that court threw out sex discrimination and ADA claims because the plaintiff had not initially filed a complaint under the grievance procedure. The Fourth Circuit refined the Austin decision in Brown v. Trans World Airlines, 127 F. 3d 337 ( 4th Cir. 1997) ( http:// www. law. emory. edu/ pub- cgi/ print_ hit_ bold. pl/ 4circuit/ oct97/ 961912. p. html? brown+ trans+ world# first_ hit), holding that filing a grievance is not required where the CBA provides only for arbitration of disputes under the contract itself.
The debate over mandatory arbitration clauses may have shifted in favor of those opposing such clauses. The holding of the 4th Circuit in Austin has been rejected by every other circuit that has considered the question, namely the federal appellate courts in the Sixth, Seventh, Eighth, Tenth and Eleventh Circuits. The Third Circuit has vacated its pro- Austin decision in Martin v. Dana Corp., No. 96- 1746, and granted a rehearing. In New York, a settlement has been reached in a major mandatory arbitration case, by which the plaintiffs will be permitted to pursue their statutory remedies. Martens v. Smith Barney, DC SNY, No. 96- 3779, 11/ 18/ 97. Finally, the National Association of Securities Dealers ( NASD) - the nation’s largest securities industry self- regulatory group, representing an industry where mandatory arbitration has been most prevalent - has decided to end mandatory arbitration as a condition of a broker’s registration.
COLLECTIVE BARGAINING AGREEMENT BARS ACCOMMODATION - The U. S. Court of Appeals for the Third Circuit has held that a seniority provision in a CBA serves as an absolute bar to a reasonable accommodation in conflict with the provision. In a split decision, the Court ruled that a disabled worker’s request for a job accommodation is per se unreasonable if it violates a seniority provision. The case involves a toll collector for the Pennsylvania Turnpike Commission who was denied a request to not work mandatory overtime as an accommodation for a back injury. Her request conflicted with the CBA’s requirement that overtime be assigned based on seniority. The majority cited the decision of the U. S. Court of Appeals for the Seventh Circuit in Eckles v. Consolidated Rail Corp., 94 F. 3d 1041 ( 7th Cir. 1996) ( http:// www. kentlaw. edu/ 7circuit/ 1996/ aug/ 95- 2856. html) with approval. See “ ADA News” No. 29, 7/ 15/ 96, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews 29. htm. That opinion stated that the conflict between an accommodation and a seniority provision posed “ a conflict not so much between the rights of the disabled individual and his employer and union, but between the rights of the disabled individual and those of his co- workers.” The Third Circuit majority held that “ the lesser degree of infringement on other employees’ seniority rights does not distinguish adequately this case from Eckles, which recognized the principle at stake here: an accommodation to one employee which violates the seniority rights of other employees in a collective bargaining agreement simply is not reasonable.” The dissenting opinion opposed the adoption of a per se rule. Kralik v. Durbin, Nos. 97- 3089 and 97- 3106, 1997 U. S. App. LEXIS 34829, 12/ 12/ 97.
EEOC RELEASES “ BEST PRACTICES” REPORT - The EEOC has released “ Best Practices of Private Sector Employers,” a report which looks at recruitment and hiring, promotion, terms and conditions of employment, termination, alternative dispute resolution and other matters among 50 to 70 employers in the private sector. The report is intended to provide guidelines for complying with federal EEO laws and managing diversity. The report is on the EEOC website at http:// www. eeoc. gov/ task/ prac2. html.
ANTI- HATE SPEECH WEBSITE LAUNCHED - The Leadership Conference on Civil Rights, a coalition of 180 civil rights groups, has launched a new website intended to combat hate speech on the Internet. Funded by a grant from Bell Atlantic, the site contains information on affirmative action, disability policy and religious freedom issues, congressional voting records and coalition members. The address is http:// www. civilrights. org.
JUSTIN DART RECEIVES PRESIDENTIAL AWARD - President Clinton has announced that the Presidential Medal of Freedom, the nation’s highest civilian award, will be awarded in a January 15th ceremony to Justin Dart, considered to be the father of the Americans with Disabilities Act. Confined to a wheelchair as a result of childhood polio, Dart has been involved in disability civil rights since the 1950s and has been called “ the Martin Luther King” of the modern disability rights movement. A long time Republican, Dart has served as the Presidents’ disability Commissioner under presidents Reagan, Bush and Clinton. Attached you can find an article about the ADA written by Dart for the Washington Post in 1995.
RETURN- TO- WORK DRUG TEST DEMAND NOT UNREASONABLE - In a non- ADA case, the U. S. Court of Appeals for the Seventh Circuit has sustained the termination of an employee who refused to submit to a routine drug/ alcohol test as part of a return- to- work physical following a six- week medical leave. The employee was fired for insubordination, as the employer had a clear policy of requiring the test. Failure to comply with the testing requirement was listed as a “ severe” disciplinary infraction in the collective bargaining agreement. After the union refused to arbitrate the employee’s grievance, the employee sued the employer and his union. The court found that the order to take the drug test was not unreasonable, and that the employee had violated “ the rule generally applied in industrial relations that an employee must ‘ obey now and grieve later’.” Crider v. Spectrulite Consortium, No. 97- 1941, CA7, 11/ 25/ 97 ( http:// www. kentlaw. edu/ 7circuit/ 1997/ nov/ 97- 1941).
ACCORDING TO THE CENSUS BUREAU, one in ten Americans has a severe disability. One in five has some level of disability, i. e., difficulty in performing functional activities, such as hearing and talking, or daily activities, such as caring for oneself, according to the Bureau.
‘ QUID PRO QUO’ HARASSMENT MUST HAVE “ SERIOUS ‘ QUO’” - In a non- disability- related case, the U. S. Court of Appeals for the Third Circuit held recently that a plaintiff alleging “ quid pro quo” harassment “ must show a ‘ quo’ that is serious enough to alter his or her ‘ compensation, terms, conditions or privileges’ of employment. … Harsh words that lack real consequences are insufficient. However, formal reprimands that result in a notation in an employee’s file could be sufficient.” This standard applies also to claims of retaliation. The court explained that “ not everything that makes an employee unhappy qualifies as retaliation, for otherwise minor and even trivial employment actions that an irritable, chip- on- the- shoulder employee did not like would form the basis of a discrimination suit.” In addition, the Court found that proximity between the filing of a complaint and an allegedly retaliatory action alone is insufficient to show a causal connection between the two. Robinson v. City of Pittsburgh, 120 F. 3d 1286 ( 3rd Cir. 1997).
TITLE VII RETALIATION IS A BIG UMBRELLA - According to a decision of the U. S. Court of Appeals for the Eleventh Circuit, Title VII protects a person against retaliation, even where the person is an alleged harasser. In the case, a woman filed a hostile work environment sexual harassment lawsuit against her employer, naming several other employees as harassers. The named harassers were deposed by the plaintiff’s attorney, after which the employer settled the dispute. Subsequently, two of the alleged harassers were fired and three others disciplined. One of the fired employees was told he was fired because his testimony “ was the most damning” to the employer’s case. He sued, claiming he had been retaliated against because he had testified in a Title VII proceeding, which is protected activity. The district court dismissed the claim, finding that the ban against discrimination against employees who have “ testified” or “ participated in any manner” in another employee’s Title VII proceeding does not protect those who testify without the intent to aid the claimant. The appellate court reversed, stating that the distinction was not supported by the plain language of the law. “‘ Any’ means all,” the court declared, noting that the statute makes no mention of the participant’s motive. ( Of course, the alleged harasser can still be legally fired for harassment.) Merritt v. Dillard Paper Co., 120 F. 3d 1181 ( 11th Cir. 1997) ( http:// www. law. emory. edu/ 11circuit/ aug97/ 96- 6247. opa. html).
… BUT NOT LIMITLESS - The U. S. Court of Appeals for the Fourth Circuit has ruled a former employee ineligible for relief under Title VII in response to her retaliation lawsuit. The female employee was reinstated from termination in settlement of her Title VII claim against the employer. Upon her return to work, she was shunned by other workers, who had been instructed by the employer not to sexually harass or socialize with her and to avoid contact with her. She also claimed that co- workers had been instructed to spy on her, and that a manager had yelled at her for suing the company. After several months, she resigned and sued, claiming she had been retaliated against for filing a charge under Title VII. Her claims were dismissed by the district court, and the appellate court affirmed. The Court stated that such acts as spying, ignoring and yelling did not constitute retaliation because he employment status was not altered. Munday v. Waste Management of North America, 126 F. 3d 239 ( 4th Cir. 1997) ( http:// www. law. emory. edu/ 4circuit/ sept97/ 942192. p. html).
IMPAIRED GOLFER RAISES QUESTIONS FOR PGA - The case of a professional golfer, Casey Martin, who plays on the Nike tour ( the Professional Golfers’ Association tour’s “ minor league”), has become somewhat of a cause célèbre for the disabilities movement. Martin has a congenital circulatory disorder that causes swelling in his right leg and makes it virtually impossible to walk the 18 holes of a golf course. He has been competing on the tour using a golf cart, despite a strict PGA requirement that players walk. The PGA is faced with the question whether his use of a cart is an unfair advantage over other players. Martin’s attorneys, filing under the ADA, have acquired a two- tournament injunction allowing him to continue to use a cart. The greater issue, to be decided by the courts, is whether the rules of a “ private organization” ( the PGA) take precedence over federal law? For more information, see the Philadelphia Inquirer article at http:// www. phillynews. com/ inquirer/ 98/ Jan/ 13/ sports/ GOLF13. htm; more at http:// www. golfonline. com/ tours/ 1998/ nike/ lakeland/ story4. html.
ATTACHMENTS - Attached are the following items which may be of interest to you:
1. " No Accommodation for Perceived Disabilities Under ADA," by Danielle N. Rodier of the Law Weekly ( Deane v. Pocono Medical Center)
2. " The Actively Sick," an editorial from the Wall Street Journal, Aug. 26, 1997
3. An announcement from the American Association for the Advancement of Science ( AAAS) regarding opportunities for undergraduate and graduate students with disabilities pursuing technical careers.
4. “ Fallacy and Truth About the ADA,” by Justin Dart, Washington Post, July 18, 1995
1. " No Accommodation for Perceived Disabilities Under ADA"
BY DANIELLE N. RODIER of the Law Weekly The 3rd Circuit has ruled that an individual who is only " regarded as" disabled and not actually disabled is not entitled to accommodation in the workplace under the Americans with Disabilities Act.
In a case of first impression, the court said it was the misperception that was disabling the individual and once that was cleared up, her disability would no longer exist and she could not make a claim under the ADA. In Deane v. Pocono Medical Center, PICS Case No. 97- 1859, ( 3d Cir. August 25, 1997) Barry, J. ( 22 pages), a three- judge 3rd Circuit panel affirmed the Middle District Court judge's order that Stacy Deane was not entitled to accommodation at her job because she was not actually disabled.
The court said the ADA primarily protects people whose jobs are affected by a disability, not simply by the perception of a disability. " The core anti- discrimination provision of the ADA provides that '[ n] o covered entity shall discriminate against a qualified individual with a disability because of the disability of such an individual," District Judge Maryanne Trump Barry, who was sitting by designation on the panel, said in the court opinion. " Thus, while far- reaching, the ADA is not boundless and only prohibits discrimination engaged in ` because of [ the individual's] disability,'" she said.
Stacy Deane was a registered nurse working on the medical/ surgical floor of the Pocono Medical Center. While helping a patient who was hanging off his bed, Deane sprained and tore the cartilage in her right wrist and missed a year of work. When Deane tried to return to work on a " light duty" basis, PMC determined it was impossible for her to return to her original position and said she could not come back to work because of her " handicap," Barry said.
The district court granted summary judgment to PMC, finding that Deane's injury was not an actual disability nor was it perceived to be by PMC. But on appeal Deane argued she was disabled under the terms of the ADA by the fact that PMC perceived her disability to be worse than it was, that it failed to accommodate her restrictions on lifting over 20 pounds and that she was fired as a result of her perceived disability.
Barry said in order to make out a prima facie case under the ADA, an individual must prove he or she: 1) has a disability, 2) is a qualified individual, and 3) has suffered an adverse employment action because of a disability. Barry said Deane already met the third part of the test because she was fired because of what her employer called her " handicap." In fulfilling the first criteria, a person can be categorized as disabled even if he or she can prove he or she is " regarded as" disabled by others. Barry said the reason people who are only perceived as disabled are included in the definition was because " society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment."
Deane did not contest the district court's decision that she was not actually disabled, but said she did fit the definition of " regarded as" disabled because PMC falsely judged the nature and extent of her injury. But that was not enough to prove that Deane was a qualified individual with a disability, Barry said, and the court rejected her claim of a perceived disability.
To prove that a person is a " qualified individual," as required by the second part of the test, the person must prove he or she can perform all the essential functions of a job with or without reasonable accommodations, Barry said. Barry said Deane could not perform all the functions of her position because total patient care required heavy lifting and Deane had offered evidence to prove she could only lift a limited weight. Deane could not perform all the functions of her position without some sort of accommodation, Barry said.
The court then had to decide if Deane was entitled to accommodation and if accommodation was even possible for her position. Barry said Deane's injury was not a disability and although PMC might have perceived it to be a disability, that did not mean Deane was protected by the ADA. " In other words, but for her employer's misperception, she would not be afforded the protections of the ADA at all," Barry said. " Viewed as such, we do not believe that Congress intended that an individual who is only perceived to be disabled would be entitled to accommodation."
Barry said the ADA only requires employers to accommodate limitations caused by an individual's disability. To compensate for a perceived disability, only the employer's misperception needs to be erased because it is the perception that disables the individual, not the physical injury, Barry said. Once the misperception is taken away, the individual will no longer be disabled and cannot claim any rights under the ADA, including for the injury that caused the misperception in the first place. "[ T] o hold otherwise would give an individual ' regarded as' being disabled an undeserved windfall were he or she to have a right to be accommodated solely by virtue of the employer's misperception where others with the same impairment would have no such right," Barry said.
Barry said only one other decision has been made on this issue and it held that it was appropriate to accommodate a perceived disability. The case that said it was right to accommodate the disability was Katz v. City Metal Co., Inc. 87 F. 3d 26 ( 1st Cir. 1996). The court in Katz held that an individual could be both actually disabled and perceived to be. The court also said the ADA could protect individuals who weren't disabled at all, if their employers perceived them as disabled. Barry said the court's decision in Katz was contrary to the definition of a perceived disability and that it misinterpreted Congress' intent in drafting the ADA.
In his dissenting opinion, 3rd Circuit Court Judge Edward Becker said he disagreed with the majority's ruling that a qualified individual must be able to perform all of the functions of his or her position without accommodation. Becker said the definition of a " qualified individual" under the ADA says an individual should only have to prove that he or she can perform the essential functions of the job. Becker disagreed with the majority's reasoning that a person who is not able to perform non- essential functions without accommodation is automatically not able to perform the essential functions either because he or she has already been accommodated for the non- essential functions.
For example, in Deane the court held that if Deane could not return to her job without it being restructured so she wouldn't have to lift, that proved she could not perform the essential functions of her job without accommodation because she was already accommodated by not lifting. The problem with that reasoning, Becker said, is that it takes non- essential functions into account where only essential functions are at issue. " Therefore, if an individual is capable of performing such functions of the job without accommodation as to those functions, regardless whether the individual can perform other functions of the job ( with or without accommodation), then that individual is qualified under the ADA," Becker said.
Becker added the majority's reasoning severely limited the number of " regarded as" plaintiffs who could make claims under the ADA because it is most likely a number of them would have some sort of physical impairment. Becker said in Deane what should have been at issue was whether lifting was an essential function of her job. "[ I] f heavy lifting is not an essential function, and if Deane can perform the remainder of the essential functions of the nursing positions she sought, then she has satisfied the second element of the prima facie case," Becker said.
2. Wall Street Journal, Aug. 26, 1997
Review & Outlook
" The Actively Sick"
" Myalgic Encephalomyelitis." Sounds pretty serious doesn't it? Serious as in: put your papers in order, the Grim Reaper's coming.
" Chronic Fatigue Syndrome" just doesn't have the same polysyllabically scary sound, does it? Say Chronic fatigue Syndrome to most sensible people and they think it's something they might like to sign up for if they just had time to take a long break. Then they go about their day, getting out of bed, putting bread on the table, dealing with the often very tedious minutiae of daily life.
But then there are those like the ex- stock broker at Smith Barney who discover that staying home with Myalgic Encephalomyelitis, or CFS, can be just as enriching as years of toiling in the trenches-- thanks to the Americans with Disabilities Act. The constantly tired and unfocused are yet another of the many groups that can sue if companies fail to " accomodate" their condition. Smith Barney just found this out in a big way. An arbitration panel of the National Association of Securities dealers ordered the brokerage to pay 1.325 million for not being sufficiently accommodating to the Florida broker who claimed to have Chronic Fatigue Syndrome.
In fact, Smith Barney had already allowed him to work at home, thus reassuringly complying with the ADA, if scaring the bejeebers out of the rest of us. With the markets already quaking, it's wild to think your broker may be absently- mindedly shorting Intel. Or perhaps just putting his or her head down on the desk when the market drops 150 points, whispering, " Yikes. I'm just way too tired to stare at that screen any longer. Maybe I should take a nap now."
Smith Barney said it ended up dismissing the fellow not because he was too weak to come into the office, but because he seemed not to be demonstrating financial probity with his own finances. The firm has yet to decide whether to appeal or let the ex- broker have servants do the heavy lifting for the rest of his life. We wonder at the ruling's effect on normally stressed, federally unprotected brokers who would have to go through boatloads of Pepto- Bismal before accumulating that kind of nest egg.
The broker is just one of thousands who drop out of the daily grind for reasons that remain mysterious and causes that remain unprovable. After all, how do you prove someone is not feeling achy and tired? Rather than relocate to less stressful jobs and quieter corners of the country, they stay home. When they are up to it, which seems often, they call up their website on the Internet, recently agitating to change the mild- sounding name Chronic Fatigue Syndrome into Myalgic Encephalomyelitis, though Myalgic Encephalopathy also had its supporters ( who seem oblivious to the abbreviation).
As it happens, disagreeing with the MEs about their views on this non- fatal affliction can get them really riled up. That's what Professor Elaine Showalter learned after the appearance of " Hystories: Hysterical Epidemics and Modern media," a book from Columbia University Press. In stressful times, she suggests, some people devise different coping mechanisms and methods of escape. Sometimes they take comfort in the interest of nosy aliens who come from so far away to visit them or find excuses for their problems in recovered memories of childhood trauma long suppressed and of course hard to document.
Chronic Fatigue is second on her list of six modern psychological epidemics, along with alien abduction, ritual satanic abuse, recovered memory, Gulf War Syndrome, and Multiple Personality Syndrome. She doesn't deny MEs are feeling poorly, but thinks they are suffering from what Freud called neurasthenia and what many therapists and doctors today would call depression in any of its many varieties. But psychologically grounded ailments still carry a prevalent stigma outside the therapeutic paradises of say, New York. So to explain their symptoms, people look, even yearn, for some physical problem, an exotic virus or maybe a little brain lesion.
The alien chasers and satanists weren't too upset about Professor Showalter's book but it proved just the right therapy for forcing the ME people right out of their sick beds. They energetically menaced her during her book tour earlier this summer. Like so many people in America these days, they felt wounded and personally insulted and they wanted her to apologize. One group surrounded her and threatened to deface her book. Others have demanded she assign her royalties to their relief. Perhaps in turn they will give these pennies to Smith Barney's ex- broker to invest for them.
Few would deny the existence or frustration of debilitating conditions. Narcolepsy is an example. Sympathy wanes, however, when such matters transform so easily into plaintiffs' claims or into harassing raids against dissenting thinkers. Such actions depart the realms of science to become mainly politics, where even chronic fatigue sufferers have to expect active opposition.
3. “ ENTRY POINT!”
The American Association for the Advancement of Science ( AAAS) is pleased to announce ENTRY POINT!, a program which provides outstanding opportunities for undergraduate and graduate students with disabilities pursuing technical careers. 1998 summer internships are available throughout the country at NASA centers and in private industry, including corporations such as IBM.
Plans for 1998 include expansion to many industries including chemistry, biotechnology and petrochemical employers. Openings in these fields will depend on the development of partnerships with appropriate employers. The AAAS Education and Human Resources ( E& HR) websites ( will be ready in November - email me again if you want address) will be updated to reflect the addition of partnering institutions and skill sets.
Eligibility requirements:
- Currently attending an accredited college or university with a major in Computer Science, Engineering, Mathematics, or Physical Science
- Minimum B average
- Proof of US Citizenship or right to work permit
***** If interested, please submit the following:
- Letter of introduction indicating geographic preference and the
type of assignment which you are seeking that best uses or builds upon your skills and work experience
- Resume
- Description of any required work accommodation or assistive technology
- Two letters of recommendation ( one from faculty)
- Copy of transcript
Applications are being accepted from October 15, 1997 with placement completed by April 15, 1998. Internships normally run from May through August, although dates vary by corporation and location.
Interested students are encouraged to apply early to ensure the best chance of matching location and skill interest with available internships.
Completed packages should be sent via Mail, E- Mail, or fax to:
Laureen Summers
AAAS - Education & Human Resources
1200 New York Avenue NW
Washington DC 20005
Phone/ TDD 202- 326- 6649
Fax: 202/ 371- 9849
E- Mail: lsummers@ aaas. org
4.
“ FALLACY AND TRUTH ABOUT THE ADA”
by Justin Dart, Washington Post, July 18, 1995
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All of the current attacks on the ADA pander to one basic fallacy which is seldom spoken, but deeply rooted in the attitudinal heritage of every culture.
Fallacy: People with serious disabilities are not fully human. They form a small minority whose fate is only marginally relevant to the concerns of ordinary people. The old approach: They are possessed by devils. Kill them. Banish them. Let them starve. The " enlightened" approach: They are tragic victims. Take care of them through welfare and charity. Give the presentable ones something to do, " hire the handicapped." Keep the ugly and the " crazy" ones out of sight. ADA? Equal rights? Equal investments? Equal power? " The inmates running the asylum?" Ridiculous! An " excess of compassion," a violation of " common sense."
Truth: Science is creating a new human being. We live twice as long as we once did. Disability used to signal the end of active life. Now it is a common characteristic of a normal lifespan. Sooner or later it will occur in the lives of most people, surely in the life of every family. Almost all new humans, including those with severe disabilities, have a proven potential to achieve far greater levels of productivity and prosperity than our strongest, smartest pre- science ancestors. Yet for the vast majority, with and without disabilities, that magnificent potential remains unfulfilled, because we allow obsolete attitudes to limit new abilities.
Fallacy: The ADA costs too much. It will bankrupt businesses and communities.
Truth: There have been no bankruptcies, no serious economic problems caused by the ADA. Not one. There never will be. The ADA specifically states that no public entity or business can be forced to do anything that will result in an undue financial burden. The ADA states that when necessary, alternative services can be delivered to citizens with disabilities in ways that are equitable and cost effective.
Seventy percent of working age Americans with disabilities are unemployed. Millions are forced to depend on public or private welfare. President George Bush estimated that this costs our nation almost $ 200 billion cash every year. Who pays? Who else? Individual tax payers, businesses, families.
Historically, every time America has extended civil rights to another oppressed minority, the entire nation has prospered. The ADA clears the way for the members of our poorest, most welfare dependent minority to work, to pay taxes, to be customers and fully, contributing participants in their communities.
Fallacy: The ADA will cause an avalanche of litigation and frivolous claims.
Truth: No avalanche. As of January 1, 1995, less than one fiftieth of one percent of the entities covered by the ADA had actually been sued under the law. Of course there have been a few frivolous claims. Every new law is tested. Every right Americans have is subject to occasional abuse.
Fallacy: The ADA signals " The Death of Common Sense." It imposes rigid, irrational regulations on businesses and communities.
Truth: Written in cooperation with the business oriented Bush administration, the ADA is a model common sense, free enterprise civil rights law. It provides regulatory guidelines, but gives business owners and local community officials unprecedented discretion to ask and to answer the most important questions: " Can I afford this accommodation?" " Is there another way to provide equality cheaper?" " Is this the most qualified person for the job?"
Fallacy: The ADA definition of disability is " loosely written." All kinds of people are claiming to have disabilities that do not fit traditional definitions.
Truth: The traditional definitions are wrong. There are far more people with real disabilities than Americans thought - 49 million and going up. There are far more kinds of disabilities and discrimination than Americans thought. The major component of the ADA definition of disability is simple and clear: " a physical or mental impairment that substantially limits one or more major life activities. " It allows courts, public officials, businesspersons and ordinary citizens to make common sense decisions based on individual reality.
The truth is that ADA does not need to be trashed - or rewritten - it needs to be implemented. The world is watching. Will we use science and free enterprise to empower the new human? Failure is unthinkable. uccess will mean the culture of our dreams.
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" News Reviews to Peruse"
Number 48 February 15, 1998
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.). This publication can also be located at http:// intradep/ reports. htm on the Department's Intranet website.
LATEX ALLERGIES - The American College of Allergy, Asthma and Immunology estimates that as many as seventeen percent of health care and other workers are afflicted by latex allergy, creating a need for guidelines on the use of latex products. Though the best protection against transmittable diseases and viruses, many organizations are looking for ways to limit the use of latex to those situations where it is clearly needed. The ACAAI has made guidelines available free of charge by calling ( 814) 427- 1200, or on its website at http:// allergy. mcg. edu/ news/ m3. html.
ZONING ACTION IS TITLE II VIOLATION - A federal appeals court has affirmed the decision of a trial court in New York, which found that the city of White Plains violated the ADA when it used its zoning power to prevent the opening of a downtown alcohol and drug treatment center. The city’s argument that zoning is not a “ service, program or activity” as provided in the ADA was rejected by the Court. The city’s decision to oppose the center came after citizens and downtown business owners voiced concern about the “ condition and nature” of people using its services, and the effect it would have on property values. “ The public hearings and submitted letters were replete with discriminatory comments about drug- and alcohol- dependent persons based on stereotypes and general, unsupported fears,” according to the opinion. “ Although the city certainly may consider legitimate safety concerns in its zoning decisions, it may not base its decisions on the perceived harm from such stereotypes and generalized fears.” The lower court decision was first reported in “ ADA News” No. 32, 10/ 15/ 96, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews_ 32. htm. The Second Circuit includes New York, Vermont and Connecticut. Innovative Health Systems Inc. v. City of White Plains, CA2, No. 96- 7797, 6/ 26/ 97 ( http:// www. law. pace. edu/ lawlib/ legal/ us- legal/ judiciary/ second- circuit/ test3/ 96- 7797. opn. html).
PACEMAKER DOES NOT EQUATE TO DISABILITY - The U. S. Court of Appeals for the Fifth Circuit ( TX, LA, MS) has held that an employee with a pacemaker does not have a disability under the ADA merely because he is medically restricted from working near welding equipment or power lines. After a disability leave during which the pacemaker was installed, the employee, who had been a welder’s assistant, was offered a job as a janitor. He took the job but sued under the ADA, alleging the employer had failed to accommodate him. The claim was dismissed by the trial court, a judgment that was upheld by the appeals court. The Court found that the employee was not limited in performing a broad range of jobs, but that he was capable of performing virtually any job within the factory except welding. Foreman v. Babcock & Wilcox Co., 6 ADCases 1523, CA5, 5/ 22/ 97 ( http:// www. ca5. uscourts. gov: 8081/ ISYSquery/ IRL2C0E. tmp/ 2/ doc).
DISABLING TREATMENTS NOT COVERED DISABILITY - The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) affirmed a lower court decision that a woman whose condition - hypercholesterolema, or excessive cholesterol - may have required a costly treatment called pheresis did not have a disability under the ADA. Pheresis, which is used in some cases to treat hypercholesterolema, involves draining the patient’s blood and cleansing it of cholesterol before replacing it in the patient, and would have required the employee to miss work one or two days per month. The Court stated that high cholesterol by itself is not a disability. Further, it observed that the employee’s physician had not, in fact, prescribed the pheresis. While the court found that high cholesterol which required a disabling treatment could be a disability, that case had not been presented. Christian v. St. Anthony Medical Center, CA7, No. 95- C- 322, 7/ 1/ 97 ( http:// www. kentlaw. edu/ 7circuit/ 1997/ jul/ 96- 3986. html).
SIXTH CIRCUIT REJECTS CLAIM BY GROCERY CLERK - The U. S. Court of Appeals for the Sixth Circuit ( OH, TN, KY) has rejected the ADA claim of a grocery produce clerk who tested positive for HIV infection. The clerk was transferred to a different job after informing his employer of his HIV status, then placed on disability leave. The employer, Prevo’s Family Market, required the employee to be certified by a physician to return to work, but was not satisfied with a report from the employee’s physician which certified his ability to return. Prevo’s insisted on an examination by an independent medical examiner, which the employee refused. He was subsequently fired and brought a case under the ADA. The federal district court issued summary judgment in favor of the employee. ( See “ ADA News” No. 34, 12/ 13/ 96, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews_ 34. htm.). The appeals court reversed, however, finding that Prevo’s was justified in insisting on an examination by an IME, and considering the employee to be a direct threat. In a rather stirring dissent, Judge Karen Nelson Moore accused the majority of violating the basic principles of the Act. “[ T] he majority opinion allows employers to elevate fear over facts, ignorance over information, and mythology over medicine,” she states. “ In so doing, the majority opinion places the oppressive weight of discrimination firmly on the side of employers.” EEOC v. Prevo’s Family Market, Inc., CA6, No. 97- 1001, 1998 FED App. 0047P, 2/ 4/ 98 ( http:// www. law. emory. edu/ 6circuit/ feb98/ 98a0047p. 06. html).
RETALIATORY JOB REFERENCE - Notifying a prospective employer that a former employee had met with an EEOC counselor imposed liability for retaliation on the U. S. Navy, according to the U. S. Court of Appeals for the Ninth Circuit ( CA, AK, AR, HI, ID, MT, NV, OR, WA). The employee met with the counselor after receiving a poor evaluation from her employer, the U. S. Navy, and later filed a complaint with the EEOC alleging race and gender discrimination. After being terminated in a RIF, the employee applied for a position with the U. S. Army, but was rejected. She filed a complaint alleging that she would have been hired but for a negative job reference from her Navy supervisors in retaliation for her first complaint. The federal district court found the negative job reference to be retaliatory, and the Navy appealed, claiming she would not have been hired anyway , and that there can be no discrimination where there is no harm. The appellate court stated that retaliatory conduct is wrong regardless whether any tangible employment harm is present. Hashimoto v. Dalton, CA9, Nos. 95- 15827 and 95- 15960, 7/ 3/ 97 ( http:// www. vcilp. org/ Fed- Ct/ Circuit/ 9th/ opinions/ 9515827. htm).
“ BLIND” AUDITIONS - In an excellent example how employers can discriminate unintentionally, a study recently published by two labor economists shows that major symphony orchestras enhanced their hiring of women by 50 percent over the last several years by conducting so- called “ blind” auditions. The “ blind” auditions involved placing a screen or partition between the musician and the hiring committee. Until about 1980, none of the major symphony orchestras had more than 10 percent women. Copies of the study, “ Orchestrating Impartiality: The Impact of ‘ Blind’ Auditions on Female Musicians,” are available from the authors at goldin@ nber. org.
JOB- RELATED STRESS claims took two hits last year in ADA actions where claimants alleged stress as a disability. In Michigan, a federal district court found a telephone customer service representative who experienced stress- related migraine headaches was not qualified to perform the essential functions of her job. The employer required that a customer service representative handle at least fifty calls a day with a 97% accuracy rate on processing calls, and refused the claimant’s request to be transferred to less stressful work. The court, referencing the Act’s statement that a court will consider “ the employer’s judgment as to what functions are essential,” deferred to the employer’s judgment that phone work was essential. Pikora v. Blue Cross & Blue Shield of Michigan, DC EMich, No. 95- CV- 71758- DT, 3/ 31/ 97.
In New York, a trial court found that job- related stress is not a disability under the ADA. The claim was brought by an employee who, soon after being promoted to a supervisory position, was hospitalized for an appendectomy and gall bladder surgery, applied for disability benefits and was subsequently fired. The employee sued, contending that the employer perceived her as having a disability, i. e., that she was unable to tolerate the stress of her new job, constituting a mental impairment which substantially limited her ability to work. The court stated unambiguously that “ an inability to tolerate stressful situations is not an impairment for purposes of the ADA.” Even if it were, the Court continued, the employee had not shown that the employer considered her to be unable to perform in a broad range of jobs. Mundo v. Sanus, DC ENY, No. 94- CV- 5333 ( FB), 6/ 24/ 97.
U. S. SUPREME COURT TO DECIDE PRISON ACCOMMODATION QUESTION - The decision of the U. S. Court of Appeals for the Third Circuit,( PA, NJ, DE) in Yeskey v. Pennsylvania ( see “ ADA News” No. 43, 9/ 15/ 97, http:// intradep/ Deputate/ MTS/ ADA/ adanews/ adanews_ 43. htm), a Title II ADA lawsuit against the Pennsylvania Department of Corrections, is scheduled to be reviewed this term by the U. S. Supreme Court. The case involves an inmate’s claim under the ADA that he was illegally denied entry into a motivational bootcamp program because of high blood pressure. The case was initially dismissed by a federal judge, but the Third Circuit reversed in July, holding that the ADA does apply to state correctional institutions. The Commonwealth appealed, claiming that state correctional institutions, being a core function of the state, cannot be impacted by federal law under the U. S. Constitution. The U. S. Justice Department has taken the position that the Act does apply to state prisons. The immediate question presented to the High Court, therefore, is whether the ADA applies. The subsidiary, but more important question is, if the ADA does apply, whether the law is unconstitutional, i. e., does Congress have the power under the Commerce Clause or the Fourteenth Amendment to the U. S. Constitution to apply the ADA to the core functions of state governments? The case is scheduled to be argued in April, with a decision due in June. Yeskey v. Pennsylvania Department of Corrections, 118 F. 3d 168 ( 3rd Cir. 1997), cert. granted ( can be downloaded from http:// www. vcilp. org/ Fed- Ct/ Circuit/ 3d/ July97. html).
CASEY MARTIN DECISION ANNOUNCED - I hope you’ve been following the coverage of the Casey Martin case in the media, first reported in last month’s newsletter ( see “ ADA News” No. 47, 1/ 15/ 98, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews_ 47. htm). Both sides offered sometimes emotional testimony in support of their respective positions, that walking is or is not an essential function of playing professional golf. ( The magistrate had ruled previously that the PGA was a “ public accommodation” under Title III of the Act.) Martin has found support from some surprising sources, including some fellow professional golfers. Pros Arnold Palmer and Jack Nicklaus testified via video deposition that walking is essential to the game. On February 11, U. S. Magistrate Thomas Coffin, who was hearing the case, issued his decision that the PGA must accommodate Martin. Coffin found that the PGA failed to prove that allowing Martin to use a gold cart would “ fundamentally alter competition,” and added that walking 18 holes of golf is “ not significantly taxing.” The PGA has announced it will appeal the decision to the federal District Court that appointed Coffin to hear the case, after which it could go to the Ninth Circuit Court of Appeals. For a more complete update on the case, point your web browser to http:// www. golfweb. com/ library/ martin/.
ADA BLOCKS OFFICER’S BLOOD TEST - A federal district court in Illinois has ruled that a Chicago police officer may proceed with his claim under the ADA. The officer was diagnosed in 1992 with depression/ dysthymia. After returning from a work injury, his physician informed the department that the officer had been taking Prozac for depression since 1990, but that nothing would interfere with his ability to perform the essential functions of his job. Nevertheless, the city ordered the officer to take a blood test to determine the level of Prozac in his system. The officer sued the city alleging that the test served no public purpose, and that it violated the ADA and federal Constitution. The test was not justified by any abnormal behavior at or near the time it was ordered, stated the court, would show merely that the officer used Prozac and would run afoul of the Act’s prohibition into the nature or severity of an employee’s disability. Krocka v. Bransfield, DC Ill, No. 95C627, 6/ 24/ 97.
EMPLOYER’S QUICK RESPONSE AVOIDS LIABILITY - An employer’s appropriate corrective response to a sexual harassment complaint absolved it from liability under Title VII, according to the U. S. Court of Appeals for the Sixth Circuit. After the female employee complained about a co- worker’s sexual advances, the supervisor conducted an investigation, relocated the co- worker and placed him under increased observation. After a second incident was alleged, the co- worker was warned that further harassment would result in his termination. The female employee continued to complain that the co- worker “ kept on coming around her,” but was told that there was no way she could be guaranteed to never come in contact with him at work. She quit and sued for sexual harassment. The trial court found that when an employer responds to a charge of co- worker sexual harassment, the employer can be liable only if it responds in an indifferent or unreasonable fashion in light of the facts. Based on the evidence it had, the employer acted in good faith. The decision was affirmed by the appellate court. Blankenship v. Parke Care Centers, CA6, No. 96- 3084, 8/ 22/ 97 ( http:// www. law. emory. edu/ 6circuit/ aug97/ 97a0250p. 06. html).
GOOD FAITH BELIEF DISCHARGES LIABILITY - According to a recent decision of the U. S. Court of Appeals for the Seventh Circuit, an employer’s good faith belief that an employee was fraudulently accepting disability benefits absolved it of discrimination under FMLA, the ADEA and ADA. The employer believed that an employee on disability leave after knee surgery was feigning her disability, and secretly videotaped her. Based on the tape and witness statements, the employee was discharged. The employee sued, alleging that her dismissal was motivated by the employer’s desire to rid itself of “ an aging woman” whom it perceived as disabled. The court found that the employee was unable to refute the employer’s evidence that it had based its decision on an honest belief that she had engaged in fraud. Kariotis v. Navistar International Transportation Corp., CA7, No. 97- 1470, 12/ 9/ 97 ( http:// www. kentlaw. edu/ 7circuit/ 1997/ dec/ 97- 1470).
OVERWEIGHT CLAIM REJECTED - The U. S. Court of Appeals for the Second Circuit affirmed the order of a lower court, which had dismissed the ADA claim of a firefighter who was disciplined for failing to meet a general weight standard. Obesity, the court stated, is not a “ physical impairment,” except in special cases where it relates to a physiological disorder; therefore, no cause of action lies against an employer that simply disciplines an employee for not meeting weight guidelines. The court noted that the claimant did not allege that the city “ believed” he suffered from an impairment and, thus, could not make out a case of discrimination based on a perception of disability. Francis v. City of Meriden, 7 ADCases 955, CA2, No. 96- 9610, 11/ 17/ 97 ( http:// www. law. pace. edu/ lawlib/ legal/ us- legal/ judiciary/ second- circuit/ test3/ 96- 9610. opn. html).
LAST CHANCE AGREEMENT VALID - The U. S. Court of Appeals for the Sixth Circuit has affirmed a district court ruling dismissing the claim of an employee who claimed he had been fired because of his alcoholism. After an alcohol- related incident and prior to his discharge, the employee had signed a “ last chance agreement” (“ LCA”), in which he agreed to attend rehabilitation sessions, participate in Alcoholics Anonymous and submit to urine and blood tests on request. The LCA provided that he could be terminated if a test showed the presence of any alcohol. The employee tested positive in a random screening, though he was not intoxicated, and was discharged per the LCA. The Court found that the employer had no duty to inform the employee that the terms of the LCA could impinge on his rights under the ADA, and that, while the employer could not fire the employee simply because of his alcoholism, the ADA in no way changed the employee’s obligations under the LCA. The Court’s opinion stated: “ There is no dispute that alcoholism is a disability within the protection of the ADA. We conclude, however, that the district court properly distinguished between [ the employee’s] conduct ( violating the terms of the LCA) and his alcoholic condition. Thus, he was not terminated for being an alcoholic.” Mararri v. WCI Steel Inc., 7 ADCases 978, CA6, No. 96- 4195, 12/ 2/ 97 ( http:// www. law. emory. edu/ 6circuit/ dec97/ 97a0349p. 06. html).
EEO LAWS APPLY TO TEMP WORKERS, SAYS EEOC - The federal Equal Employment Opportunity Commission has issued a guidance document declaring the agency’s position on the entitlement of temporary or “ contingent” workers to relief under the ADA and other EEO laws. The EEOC states that “ both staffing firms [ temp agencies] and their clients share EEO responsibilities” toward temporary workers, and that both could be considered “ joint employers” when it comes to liability. Further, it is the position of the EEOC that temporary agencies have a responsibility to act immediately upon learning that a client has discriminated against a temporary employee, including ceasing the assignment of workers to that client. The guidance document is available on the EEOC website at http:// www. eeoc. gov/ press/ 12- 8- 97. html.
DC CIRCUIT’S AKA RULING VACATED - In “ ADA News” No. 42, 8/ 15/ 97 ( http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews_ 42. htm), I reported on a case in the U. S. Court of Appeals for the District of Columbia Circuit in which a three- judge panel held that a conflict between an employee’s reasonable accommodation request and a collective bargaining agreement (“ CBA”) is not automatically resolved in favor of the CBA. Now the Court has announced that it has vacated that judgment, and granted the employer’s request for a hearing by the entire Court en banc. The original decision, Aka v. Washington Hospital Center, 6 ADCases 1629, CADC 1997, 7/ 10/ 97, can be found at http:// www. ll. georgetown. edu/ Fed- Ct/ Circuit/ dc/ opinions/ 96- 7089a. html.
DB- LINK, the National Information Clearinghouse on Children Who Are Deaf- Blind, is a federally- funded information and referral service that identifies, coordinates and disseminates information related to children and youths who are deaf- blind. DB- LINK is available to anyone needing information on any topic related to deaf- blindness, and is provided at no cost to users. DB- LINK can be found on the web at http:// www. tr. wou. edu/ dblink, or reached by calling 800- 438- 9376. PDDC REPORT AVAILABLE - The 1997 annual report of the Pennsylvania Developmental Disabilities Council is available to interested persons. The report, a 73- page document, is available upon written mailed request to Mary Kent, Room 569 Forum Building, Harrisburg, PA 17120. Alternative formats are available upon specific request.
ACCESS BOARD UPDATE - The U. S. Access Board has issued final guidelines under Titles II and III of the ADA in several areas, including telecommunications accessibility, children’s facilities and state and local judicial and detention facilities. The guidelines are advisory until officially adopted by the Departments of Justice and Transportation. These and other documents can be seen at the website of the U. S. Access Board, http:// www. access- board. gov/.
ATTACHMENTS:
1. “ Space Camp for Interested Visually Impaired Students”
2. “ Anti- nepotism Policies Could Create Potential Discrimination Claim” by Hugh F. Murray, III, Esq., Murtha, Cullina, Richter and Pinne
3. “ EEOC Issues Guidance on Psychiatric Disabilities” by April Lieberman, Esq., Murtha, Cullina, Richter and Pinney - Connecticut
“ Space Camp for Interested Visually Impaired Students”
" Math and science have never interested me more since Space Camp."
SCI- VIS ' 97 attendee, Mississippi
" It has made me more independent and more assertive. I've gained a
lot of self- confidence." Advanced Academy Camper, SCI- VIS ' 97, Nebraska
" I am now in college studying to be an Aerospace Engineer thanks to
Space Camp." SCI- VIS ' 93- 96 Alumnus, West Virginia
" I made a lot of life long friends." SCI- VIS ' 97 attendee, Iowa
**********************************************************************
The above quotes are from kids who spent a week at Space Camp
for Interested Visually Impaired Students ( SCI- VIS) held at the U. S.
Space and Rocket Center in Huntsville, Alabama last fall.
Interest in academics, independence, career goals, and life
long friendships are what we all want for our children. Whether you are a teacher or a parent of blind or visually impaired child, the
above comments should interest you. SCI- VIS is changing the life's of
those children attending. Space Camp's goals are to excite young
minds about math, science, and the possibilities in their future when
they use that knowledge. SCI- VIS alumni are studying aerospace
engineering and working for NASA. SCI- VIS offers one of the largest
gatherings of academic programming for the blind and visually impaired
in the world! Be a part of it!
SCI- VIS ' 98 has officially been scheduled Sept. 26- Oct. 1,
1998 at the U. S. Space and Rocket Center in Huntsville, Alabama. The
program, in its ninth year, enjoyed a 25% growth in attendance last
year. A total of 151 students from 28 U. S. states, Australia,
Russia, England, and Canada. Technology support was provided by Mark
Goodkin and Assoc., Austell, Georgia and Optelec.
Foreign students are being sought for the 1998 Camp and some
funding is available. Other scholarships are available for American
students. Additional scholarships are being sought with the assistance
of the Space Camp Foundation, Inc. to assist more students with
airfare and tuition. Any financial assistance will be greatly
appreciated and can be earmarked for students in specific states,
countries, or organizations.
Space Camp and Aviation Challenge programs are both available
for blind and visually impaired students in grades 4- 6, 7- 12, and
college bound students grades 10- 12. Some programs are mainstreamed
with sighted campers. Siblings and friends of blind and visually
students can attend this week, also. We are also accepting names of
interested adults for another Space Camp for Blind Adults to be held
Oct. 2- 4, 1998.
The cost is $ 500 for all programs except the college bound
program which is $ 710. Cost include programming, lodging, and meals
from Saturday lunch through Friday breakfast. The program is
coordinated by Dan Oates at the W. Va. School for the Blind. Tuition
and registration deadline is August 15, 1998.
All forms, documents, scholarship information, and answers to
frequently ask questions will be updated on our website. For further
information contact our SCI- VIS ' 98 website or e- mail us. If Internet
service is unavailable ask a friend who has service to assist you or
contact Dan Oates. Contact Person:
Dan Oates, International Coordinator
Space Camp for Interested Visually Impaired Students
West Virginia School for the Blind
301 E. Main St.
Romney, WV 26757
office phone: ( 304) 822- 4883
office FAX: ( 304) 822- 4898
home phone: ( 304) 822- 4410
e- mail: doates@ access. mountain. net
U
RL: http:// www. tsbvi. edu/ spacehome. htm
“ Anti- nepotism Policies Could Create Potential Discrimination Claim”
Hugh F. Murray, III, Esq., Murtha, Cullina, Richter and Pinne
Many employers have policies designed to prevent the employment of close relatives. Such policies can eliminate many sources of poor productivity, morale problems and other undesirable workplace characteristics. However, the application of such policies to newly married employees has given rise in recent years to litigation over marital status discrimination.
Usually the following fact pattern arises: A man and a woman are co- workers. They begin dating and fall in love. They move in together. The employer becomes aware of the situation, is happy that there is no sexual harassment lawsuit and makes sure that neither employee directly supervises the other. The couple then decides to marry. The employer checks its policy manual and finds that there is a prohibition against spouses working together, even if there is no direct supervisor/ employee relationship. Once the couple is married, the employer enforces its rule and one of the parties is terminated.
Facts such as these have often served as a basis for a federal sex discrimination claim in cases where the female employee has been the one terminated. More recently, however, employees have been challenging these actions on the basis of state laws that prohibit " marital status" discrimination.
Several state supreme courts outside Connecticut have addressed this issue. Some have held that this is discrimination on the basis of marital status because the only thing that caused the employer to fire the employee was that he or she got married. Other state supreme courts have held that discrimination based on the identity of a person's spouse is not unlawful marital status discrimination.
Connecticut is one of the many states that prohibits " marital status" discrimination ( such discrimination is not prohibited by federal law). Neither the Connecticut Appellate Court nor the Connecticut Supreme Court have addressed the issue of whether application of an anti- nepotism policy to newly married co- workers runs afoul of this prohibition. The single trial court that has addressed the issue has held that such a policy does not violate Connecticut's " marital status" discrimination prohibition. On the other hand, in at least some cases, the Connecticut Commission on Human Rights and Opportunities has found that such policies applied in these circumstances are illegal.
What then is a Connecticut employer to do? First of all, the employer should review its written policies on this subject to see if it addresses the issue of newly married co- workers. If there appears to be an absolute prohibition on the employment of spouses, an employer may wish to consider whether, in the case of co- workers who marry, it wishes to enforce the policy. If it does, and the situation arises, the employer may well face litigation over this unsettled issue of Connecticut law.
If an employer is faced with such a situation, the employer should carefully consider whether the actual situation will create a real, as opposed to theoretical, conflict of interest, and whether such a conflict could be resolved short of terminating one or the other employee. As this is an evolving area of the law, counsel should be consulted to assist in addressing a particular case.
“ EEOC Issues Guidance on Psychiatric Disabilities”
April Lieberman, Esq., Murtha, Cullina, Richter and Pinney, September 1997
Since the passage of the Americans with Disabilities Act ( ADA) in 1990, the definition of " disability" has evolved far beyond straight forward physical disabilities. An increasing number of lawsuits under the ADA involve claims of mental or psychiatric disorders, many of which leave employers confused as to their rights and responsibilities with regard to employees claiming to suffer from these disorders.
On March 25, 1997, the Equal Employment Opportunity Commission ( EEOC) issued its first policy guidance detailing the obligations employers must meet under Title I of the ADA to accommodate workers with psychiatric disabilities. The Commission noted that Congress intended the ADA to combat employment discrimination as well as the " myths, fears, and stereotypes" that these individuals with psychiatric disabilities face in the workplace. According to agency statistics, allegations of discrimination on the basis of an emotional or psychiatric impairment have constituted about 12.7 percent of the ADA charges filed with the commission over the past four years.
In the enforcement guidance, the EEOC explained its position on what constitutes a protected psychiatric disability under the ADA, when an employer may inquire of applicants or employees about psychiatric disabilities and what types of accommodations the Commission regards as passing muster under the Act. The agency illustrated its views with a series of practical examples and cited several reported court opinions from around the country.
The EEOC's regulations implementing Title I of the ADA define " mental impairment" to include " any mental or psychological disorder, such as ... emotional or mental illness and specific learning disabilities." Examples of " emotional or mental illness( es)" include major depression, bipolar disorder, anxiety disorders ( panic disorder, obsessive compulsive disorder and post- traumatic stress disorder), schizophrenia and personality disorders. The definition also refers to " other neurological disorders such as Alzheimer's disease," mental retardation, organic brain syndrome and specific learning disabilities.
The EEOC addressed the controversial issue of " mitigating measures," in commenting that " a qualified individual with a psychiatric disability is covered by the ADA, even if medication is taken to control the effects of the disability."
An impairment must substantially limit one or more " major life activities" to qualify as a covered disability and, therefore, require reasonable accommodation by an employer, barring undue hardship. The commission explained that those activities may include " learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks or working."
In the case of " interaction with others," the EEOC said that " some unfriendliness with co- workers or a supervisor" would generally not be considered an ADA disability. However, more severe social problems such as consistently high levels of hostility, social withdrawal or failure to communicate when necessary might be covered under the Act. These limitations must be long- term in order to qualify for coverage under the Act.
The EEOC further commented that an employee may request a " reasonable accommodation" of a disability at any time during employment. The request need not be in writing, and may be made " in plain English and need not mention the ADA or use the phrase reasonable accommodation." The request may even be made by a third party such as a family member, friend, or health professional on behalf of the individual with the disability. The Commission added, however, that " if the employee's need for accommodation is not obvious, the employer may ask for reasonable documentation concerning the employee's disability and functional limitations."
Among reasonable accommodations the EEOC approved were giving an individual with a psychiatric disability time off from work, modifying work schedule or workplace policy, adjusting supervisory methods, providing a job coach and physically changing the workplace through the use of room dividers and reducing ( adjustable) workplace noise. Reassignment to a different job " must be considered ... when accommodation in the present job would cause undue hardship or would not be possible. Reassignment may be considered if there are circumstances under which both the employer and employee voluntarily agree that it is preferable to accommodation in the present position."
The Commission commented, however, that employers are not required to make sure that an individual takes medication as prescribed. Nor are employers mandated to " excuse ... ( job- related past) misconduct, even if the misconduct results from an impairment that rises to the level of a disability, if it does not excuse similar misconduct from its other employees." "( N) othing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property."
The EEOC guidance is not the last word on psychiatric disabilities and the ADA - courts have often disagreed with the EEOC in the past - but it is a good guide to an employer seeking to avoid problems under the ADA. @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@ @@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 49 March 15, 1998
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.). This publication can also be located at http:// intradep/ reports. htm on the Department's Intranet website.
SUPREME COURT DECLINES REVIEW - The U. S. Supreme Court has declined to review thirty- five labor and employment related cases. Among these cases was a decision of the U. S. Circuit Court of Appeals for the Fifth Circuit ( TX, LA) reported in last month’s newsletter, Foreman v. Babcock & Wilcox Co. ( http:// www. ca5. uscourts. gov: 8081/ ISYSquery/ IRL2C0E. tmp/ 2/ doc)( see “ ADA News” No. 48, 2/ 15/ 98, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews_ 48. htm). Foreman, who sought review by the High Court, argued that the “ restrictive” ruling of the Fifth Circuit - which ruled that his heart surgery and pacemaker did not qualify him as a person with a disability - “ undermine[ d] the beneficial purposes of the ADA” and was inconsistent with decisions of other circuit courts.
The Court also declined to review a case in which the U. S. Court of Appeals for the Second Circuit ( NY, CT, VT) found that a city’s refusal to assign a firefighter who could no longer perform firefighter duties due to a disability light duty “ non- fire suppression” duties as a reasonable accommodation violated the ADA. The city in seeking review argued that the proposed accommodation was not reasonable because firefighting was an essential function of every firefighter’s job, even if it was rarely performed. The Second Circuit Decision can be found at http:// www. law. pace. edu/ lawlib/ legal/ us- legal/ judiciary/ second- circuit/ test3/ 96- 7976. opn. html.
PARALYMPICS - The seventh winter edition of the “ other Olympics,” the Paralympics Games, was held in Nagano, Japan from March 4 through the 14th. It is the first time the Games have been held at a non- European location. Nearly 590 athletes from a record 32 countries participated in Alpine and cross- country skiing, biathlon, ice sledge speed racing and hockey. Competitors include persons with sight or motor impairments, who are divided into twelve classes depending on degree and type of disability. The 1994 U. S. team, composed of 50 athletes, won 24 gold, twelve silver and seven bronze medals. Unfortunately, this edition will not reach you until after the Games have concluded. Visit the official website of the Games at http:// www1. nagano. paralympic. org/ home_ e. html for updated information.
THERAPIST WITH ADD ALLOWED TO PROCEED - The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) has allowed a psychotherapist with Adult Residual Attention Deficit Hyperactivity Disorder to proceed with her claim that her employer fired her based on a record of disability. The therapist’s discrimination claims were rejected by the federal trial court, in part because the court found that she had failed to show she currently has a disability under the ADA. The appellate court affirmed the trial court on most of her claims, but reversed on the claim that she experienced discrimination based on a record or history of disability. Based on evidence that she had ADD- type difficulties since high school, the Court found that a reasonable fact- finder could conclude that she had a history of impairment which substantially limited her ability to learn. According to the Court, a history of a substantially limiting impairment could constitute a disability “ permitting the plaintiff to demand reasonable accommodations to ongoing or recurrent limitations.” The therapist had been hired to counsel children and adolescents with ADD, and had revealed her condition to her employer at the time she was hired. Davidson v. Midelfort Clinic, Ltd, CA7, No. 96- 2860, 1/ 7/ 98 ( http:// www. kentlaw. edu/ 7circuit/ 1998/ jan/ 96- 2860. html).
PSYCHIATRIC DISABILITY DOES NOT EXCUSE “ MORAL DELINQUENCY” - The U. S. Supreme Court has let stand a decision of the U. S. Court of Appeals for the Sixth Circuit ( OH, KY, TN), which affirmed the termination of a university professor who claimed she was fired because of her psychiatric disability. The Circuit Court held that the professor had been fired, not for her disability, but because of “ moral delinquency” in submitting false expense vouchers. The professor claimed that her disability - panic attacks - impaired her ability to make moral judgments. Lamvermeyer v. Denison University, USSCt, No. 97- 433, 11/ 10/ 97.
MCDONALD’S DISCRIMINATED AGAINST DEAF CUSTOMER - A McDonald’s restaurant in Washington, D. C. violated the ADA when it discriminated against a deaf customer, according to a federal district court in the nation’s capital. According to the court, the customer attempted to place an order at a drive- through facility by writing his order on a piece of paper. He was told he must come inside to place his order, where the employees “ snickered” at him, he was given the wrong change, and was served “ warm water with a white substance” instead of Sprite. When he complained, a part- time police officer serving as a security guard forcibly restrained and arrested him, and he was held in custody for six hours. The court found that the employees of the restaurant - which is located near Galaudet University, a university devoted entirely to the deaf and hearing impaired, and which typically serves about 25 deaf persons per day - were “ inadequately trained to deal with the special needs of deaf and hearing- impaired patrons,” and that the restaurant had no training program in place. Bunjer v. Edwards, DC DC, CA No. 96- 01136 ( SS), 12/ 23/ 97.
FDR MEMORIAL - Disability rights groups have been advocating since the construction of the FDR Memorial in Washington, D. C. for the memorial to include a statute of the former president in a wheelchair. Last year, legislation sponsored by Senator Daniel Inouye and Representative Maurice Hinchey was passed by Congress directing the Park Service to add a permanent depiction of FDR as a person with a disability to the national memorial built in his honor. The week of March 9, the National Park Service convened hearings in the capital to determine how to carry out the mandate. The hearings were attended by a number state representatives and disability advocates and advocate groups, who were addressed by Senator Tom Harkins and Justin Dart, among others. The statue “ should be a reminder to all that disability is a natural part of the human experience and that it in no way diminishes a person's ability to contribute to all parts of American life…. I think a statue portraying Franklin Roosevelt using his wheelchair would not be a statue to disability in any way," said Harkin who helped write the new law and who was a co- sponsor of the Americans with Disabilities Act. " It would be a statue to the indomitable human spirit that never gives up, that is always optimistic." Harkin said he envisions a wheelchair- riding Roosevelt statue " at eye level, with that great smile on his face and with the chin thrust up."
In a letter read for him, Justin Dart, a leader of the " Roosevelt- in- a- wheelchair" movement and recent recipient of a Presidential Medal of Freedom in recognition of his work, said that a decision to depict the 32nd president's disability in a mural or base relief instead of a free- standing central statue would be " neither sufficient or acceptable.… A statue will make an impression, it will inspire the able bodied and the disabled alike," said Dart, who uses a wheelchair and who was unable to be present in person because of illness. Dart led a group of disabled people at the Roosevelt memorial when it was dedicated last May. The official website for the memorial can be viewed at http:// www. axionet. com/ key/ FDR/ Comm. html.
SAP/ STEVIE WONDER VISION AWARDS - “ The SAP/ Stevie Wonder Vision Awards are an initiative designed to promote innovative technology solutions and opportunities to help integrate blind and visually impaired individuals into the workforce. A joint effort between SAP and Stevie Wonder, the Awards were created to raise awareness and spur the development and distribution of technology solutions to enable blind and visually impaired individuals to actively participate and contribute to the business community. In addition, the Awards will identify and honor innovative existing technology products, role model organizations which are actively employing the blind and visually impaired, and significant research and development efforts in this area.” Deadline for nominations has been extended to March 31, 1998. ( From SAP website announcement, http:// www. sap. com/ germany/ discsap/ vision/ vis_ ind. htm).
CONDITIONS FOR REHIRE UNREASONABLE - An employer may not set conditions for the rehire of a former employee with a perceived drug problem which are unreasonable and which violate the ADA. The city of Allentown discharged an employee when he was found to have criminally altered a prescription for pain medication. The city chose to give him a second chance and agreed to rehire him, but only after he successfully passed a drug screening and was cleared to return to work by a physician. The drug test showed the presence of codeine from a legally prescribed cough medicine and the employee was cleared to return. Despite evidence that the employee was not currently using drugs, the city required the employee to attend and complete a drug rehabilitation program chosen by the city before his return. The employee could not afford the program chosen by the city, but agreed to attend a different program. The city refused and the employee sued. The trial court found that, though the employee’s discharge for forging a prescription was not illegal, the city illegally discriminated against the employee when it refused to return him after agreeing to rehire him, because of a perception that he was addicted to drugs. Herman v. City of Allentown, 1997 U. S. Dist. LEXIS 18522 ( E. D. Pa. 1997).
UNIVERSITY STANDARDS NEED NOT BE WAIVED - Recent decision by two federal courts indicate that universities may uphold certain academic standards even in the face accommodation requests under the ADA. A U. S. district court in Massachusetts decided that the University of Massachusetts did not have to waive fundamental course requirements for a student who could not complete required clinical course work due to complications as a result of pregnancy. The court, which rejected UMass’s contention that the student did not have a covered disability, also rejected the student’s argument that the university was required allow her to complete course work at home. Darian v. Univ. of Massachusetts, 980 F. Supp. 77 ( D. Mass. 1997)
In a related case, the U. S. Court of Appeals for the Sixth Circuit has affirmed a lower court decision which found that Vanderbilt University did not violate the ADA when it refused to readmit a former student. The student had withdrawn from the University after he was recommended for dismissal for academic and behavioral problems, problems which he revealed were a result of manic depression. He reapplied for admission after stabilizing his condition with medication, but the University denied his application, stating the former student was not qualified. Doe v. Vanderbilt University, 132 F. 3d 32 ( 1997)( opinion not published).
PRESIDENTIAL APPOINTEE - President Clinton has named Bill Lann Lee U. S. Department of Justice acting assistant attorney general for civil rights, succeeding Deval Patrick. The President added that he will be submitting Lee’s nomination to the full Senate in the coming months.
EEOC POSITION ON MITIGATING MEASURES REJECTED - The U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, KS, NM, OK) rejected the position of the EEOC regarding the consideration of “ mitigating measures” in a recent decision. The EEOC Interpretive Guidelines provide that a determination whether an individual has a disability is to be made without regard to mitigating or corrective measures, e. g., a person with diabetes may be a “ person with a disability” even if the effects of the diabetes are controlled or mitigated by medication. The Court disagreed, stating that the guidance conflicts with the ADA’s mandate that an impairment “ substantially limit” a major life activity. The issue, held the Court, is whether the impairment affects the individual in fact, not whether it would do so hypothetically without the use of corrective measures. The case involved two applicants for positions as commercial airline pilots who were denied positions because they could not meet the employer’s vision standards without their glasses. Sutton v. United Air Lines, Inc. 7 ADCases 1167, CA10, 11/ 26/ 97 ( http:// lawlib. wuacc. edu/ ca10/ cases/ 1997/ 11/ 96- 1481. htm) The decision conflicts with the position of the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE)( See “ ADA News” No. 47, 1/ 15/ 98, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews_ 47. htm).
JUDICIAL ESTOPPEL - Add two more federal circuits to those in which the concept of “ judicial estoppel” cannot bar an ADA claim, and one where it can. The concept holds that a claimant cannot take inconsistent positions in different forum. The manner in which this often occurs is when someone must claim to be “ totally disabled” in order to be eligible for disability benefits, but then pursues a discrimination claim under the ADA. The ADA defendant will interpose the prior statement to prove that the claimant is not a “ qualified individual with a disability,” because he or she has claimed to be totally disabled. This position has recently been rejected by the U. S. Courts of Appeals for the Eleventh ( AL, FL, GA) and Seventh Circuits ( WI, IL, IN). Talavera v. School Board of Palm Beach County, 7 ADCases 1025, CA11, 11/ 24/ 97 ( http:// www. law. emory. edu/ 11circuit/ nov97/ 96- 4756. man. html); McCreary v. Libbey- Owens Ford Co., 7 ADCases 1115, CA7, 12/ 18/ 97 ( http:// www. kentlaw. edu/ 7circuit/ 1997/ dec/ 97- 1571. html). The U. S. Court of Appeals for the Fifth Circuit has taken the opposite position. McConathy v. Dr. Pepper/ Seven Up Corp., 7 ADCases 1104, CA5, 1/ 7/ 98 ( http:// www. ca5. uscourts. gov: 8081/ ISYSquery/ IRLDC6. tmp/ 1/ doc). In the Third Circuit, the rule of judicial estoppel can be used to bar an ADA claim. ( See McNemar v. The Disney Store, discussed in “ ADA News” No. 30, 8/ 15/ 96, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews_ 30. htm).
HAWAII RELAXES GUIDE DOG ADMISSION STANDARDS - Guide dogs would be granted immediate access to Hawaii under a settlement reached recently between the state and the Justice Department. ( See prior story in “ ADA News” No. 29, 7/ 15/ 96, http:// intradep/ Deputate/ MTS/ ADA/ ADANews/ adanews_ 29. htm).
NCD YOUTH CONFERENCE - The National Council on Disability will hold its second annual Youth Leadership Development Conference June 22- 24 in Washington, D. C. For more information, see the NCD’s website at http:// tiny. iapnet. com/ ncd/.
ATTACHMENTS -
1) “ How Far Does the Reasonable Accommodation Obligation Go?” - Harriet E. Cooperman, Esq., Weinberg & Green LLC
2) “ Enforcing the ADA - A Status Report from the Department of Justice” ( July- September 1997)
1) “ How Far Does the Reasonable Accommodation Obligation Go?”
Harriet E. Cooperman, Esq.
( Weinberg & Green LLC - Maryland)
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The ADA obligates an employer to make reasonable accommodations to the known physical or mental limitations of a qualified disabled individual with a disability unless the employer can demonstrate that the accommodation would pose an undue hardship on the operation of the business. The Act defines " reasonable accommodation" to include:
· making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
· job restructuring, part- time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar accommodations for individuals with disabilities.
In Bryant v. Better Business Bureau of Greater Maryland, the court held that although the employer previously had supplied its hearing impaired employee with a telephone amplification device, it failed to provide a reasonable accommodation to her when it refused to supply her with a text telephone or TTY system. The employee contended that with her promotion to membership coordinator, the duties of her position changed and included staffing a hotline number. Consequently, the amplification device no longer was adequate and she requested the TTY. The one- time cost of the system would have been $ 279. The Better Business Bureau argued that the device would pose an undue hardship, because its members would be " awkward and unfamiliar" with the system. The court, in rejecting this contention, held that it was " not only inappropriate and patronizing, but offensive." BBB's contention that it would lose members was based on " little more than preconceived discriminatory stereotypes."
Additional accommodations may include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment, making the employer- provided transportation accessible, and providing reserved parking spaces. [ See Lyons v. Legal Aid Society ( Court found that to reasonably accommodate a disabled staff attorney who wore knee braces and had trouble walking any distances, Legal Aid may be required to pay for the expenses of parking spaces both at her office and near the courthouses where she practiced. " There is nothing inherently unreasonable in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work," the court observed.)] The regulations also suggest that a reasonable accommodation may include providing personal assistants, such as a page turner for an employee with no hands or a travel attendant to act as a sighted guide to assist a blind employee on an occasional business trip. However, in Gilbert v. Frank and Ricks v. Xerox Corp., the courts found that it is not reasonable to require an employer to assign other employees to assist the plaintiff in heavy lifting or to hire an assistant for a plaintiff, respectively. [ But see Wisch v. Whirlpool Corporation ( Employer may be required to assign others to assist plaintiff in heavy lifting since employer currently provides " muscle men" to help employees lift heavy loads. This would not impose upon the employer something that it is not already doing, the court observed.)]
One suggested accommodation involves making facilities used by employees readily accessible to, and usable by, individuals with disabilities. The Interpretative Guidance explains that this includes both those areas that must be accessible for the employee to perform essential job functions, as well as non- work areas used by the employer's employees, such as rest rooms, training rooms and lunch rooms. In Vande Zande v. State of Wisconsin Department of Administration, a wheelchair- bound paraplegic state employee sought to have her employer lower the sink in the kitchenette to make it accessible to her. The employer refused and suggested that she utilize the sink in the rest room which was close by. She refused because she felt that this alternative stigmatized her as different and inferior. Although the cost of lowering the sink on the floor where the plaintiff worked was only $ 150, the court did not believe that this accommodation was reasonable. The court concluded that absolute identity in working conditions between the disabled and non- disabled is not required. Access to an equivalent sink which is conveniently located is sufficient.
Job restructuring involves reallocating or redistributing nonessential, marginal job functions. There is no requirement, however, that an employer restructure the position by removing an essential function from the scope of the employee's required duties. [ See Carrozza v. Howard County, Maryland; Milton v. Scrivner, Inc.( no obligation to reduce production schedule or to lighten plaintiffs' loads because to do so would be to fundamentally alter the nature of the warehouse operation); Durning v. Duffens Optical, Inc. ( employer under no obligation to permit outside salesman to make sales calls via telephone).] In Stephen Kiess v. D & H Distributing, Judge Smalkin held that is it not reasonable to require an employer to accommodate an employee's disability by restructuring Kiess' job to accommodate his disability, or by changing his job from kitchen installer to kitchen finisher or by pushing of all of the heavy work inherent in the installer job to his fellow workers.
Reassignment to vacant positions is an accommodation that only may be required with respect to current employees, not to applicants. Where no other forms of accommodation are reasonable and reassignment is reasonable under all the circumstances, it may be required. [ Leslie v. St. Vincent New Hope, Inc.]. However, in Miller v. Department of Corrections, the court explained that the ADA does not impose upon an employer the affirmative duty to find another job for the employee who no longer is qualified for the job he is doing. Rather, the disabled employee bears that burden of producing sufficient evidence to establish that an accommodation by reassignment was possible. To do so, he must ( i) identify another position; ( ii) establish that he was qualified for the position; and ( iii) produce evidence that the position was vacant.
An employer, moreover, is not required to make accommodations that would violate the rights of other employees. Thus, an employer need not terminate or bump other employees to enable the reassignment of a disabled employee. An accommodation also is not considered reasonable if it violates the applicable collective bargaining agreement. [ Wooten v. Farmland Foods; Eckles v. Consolidated Rail Corp. ( Court rejected EEOC's argument that parties to a collective bargaining agreement must negotiate a variance from seniority rules when the only effective accommodation, i. e. bumping more senior employees, contravenes those rules and would not unduly burden other employees).] Similarly, there is no obligation on the part of the employer to create a new position for the disabled individual. [ See Durning v. Duffens Optical, Inc.; Miller v. Department of Corrections.] Generally, the courts are finding that there is no requirement that the employer create permanent light duty positions for the disabled individual who no longer is able to perform the duties of his position. This is true even if the employer provides light duty on a temporary basis to employees recovering from an injury or illness. [ See Staub v. The Boeing Company and Wisch v. Whirlpool Corporation]
As explained above, allowing employees to utilize accrued leave and providing employees with additional time off necessitated by their disability may be a reasonable accommodation. The ADA, however, does not require an employer to grant the employee unlimited time off. In Myers v. Hose, the Fourth Circuit explained that, " Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect. Rather, reasonable accommodation is by its terms most logically construed as that which presently, or in the immediate future, enables the employee to perform the essential functions of the job in question." The court cited the need of the employer to promptly fill positions with qualified employees. " For the county to stand by - or hire temporary help - while Myers endeavors to improve his failing health would be a significant burden," the court emphasized. [ See also, Monette v. Electronic Data Systems Corp.; Hudson v. MCI Communications Corp., ( as of her date of termination, employee presented no evidence of expected duration of impairment and physician did not indicate when employee would be able to resume her regular duties); Rogers v. Intl. Marine Terminals, ( nothing in the reasonable accommodation requirement obligates an employer to wait indefinitely for the employee's condition to be corrected).]
Another accommodation suggested to address disability related attendance issues is to permit the employee to work at home. The Seventh Circuit in Vande Zande v. State of Wisconsin Department of Administration rejected this accommodation. There, the court explained that most jobs involve team work under supervision rather than solitary unsupervised work. This generally cannot be performed at home without a substantial reduction in the quality of the employee's performance. [ See also, Tyndall v. National Education Centers of California, Inc.].
The Seventh Circuit has indicated that giving the disabled employee a " second chance" is not a reasonable accommodation and thus, is not a requirement. [ Sieken v. Village of Arlington Heights] Moreover, an employer is under no obligation to reserve a place in the seniority line- up for employees who quit due to their disability and then return to work. [ Kennedy v. Chemical Waste Management, Inc.] In Wernick v. Federal Reserve Bank, the Second Circuit held that an employer was under no obligation to reassign an employee with a back injury to a different supervisor, despite the employee's claim that her current supervisor caused her stress which aggravated her back condition. The court emphasized that Congress did not intend to interfere with personnel decisions, but only to ensure that disabled individuals had the same opportunities as are available to non- disabled individuals.
It is the responsibility of the disabled individual to inform the employer of the need for an accommodation. An employer is not under any obligation to make an accommodation to a disability of which it has no knowledge. [ Beck v. University of Wisconsin Board of Regents; Miller v. National Casualty Company]. Moreover, if the employee seeks no accommodation but is unable to perform essential aspects of the job, the employer is not obligated to provide an accommodation. [ Derbis v. United States Shoe Corporation.] When the need for an accommodation is not obvious, an employer may require the employee to provide it with documentation of the need before it makes any accommodation.
The determination of what accommodation is appropriate in a particular situation involves an interactive process in which the employer and employee identify the precise limitations imposed by the disability and explore potential accommodations that would overcome those limitations. The ADA does not require the employer to provide the best accommodation possible, nor does it require the employer to accommodate the disabled employee in exactly the way he/ she requests. [ See Leslie v. St. Vincent New Hope, Inc.]
Neither the ADA nor the regulations assign responsibility for when the interactive process fails. Generally, the courts will look at the failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary. Where the missing information is the type that can only be provided by one of the parties, such as information about the employee's medical condition, and it is not provided, that party may be found to have obstructed the process. [ Beek v. University of Wisconsin Board of Regents; Ferry v. Roosevelt Bank.]
2) " Enforcing the ADA - A Status Report from the Department of Justice" ( July- September 1997)
This Status Report covers the ADA activities of the Department of Justice during the third quarter ( July- September) of 1997. This report, previous status reports, and a wide range of other ADA information are available through the Department's ADA Home Page on the World Wide Web ( see page 22). The symbol (**) indicates that the document is available on the ADA Home Page.
INSIDE...
ADA Litigation
Formal Settlement Agreements
Other Settlements
Mediation
Certification
Technical Assistance
Other Sources of ADA Information
How to File Complaints
1997, Issue 3
The Americans with Disabilities Act ( ADA) is a comprehensive civil rights law for people with disabilities. The Department of Justice enforces the ADA's requirements in three areas - Title I: Employment practices by units of State and local government; Title II: Programs, services, and activities of State and local government; Title III: Public accommodations and commercial facilities.
I. Enforcement
Through lawsuits and both formal and informal settlement agreements, the Department has achieved greater access for individuals with disabilities in hundreds of cases. Under general rules governing lawsuits brought by the Federal Government, the Department of Justice may not file a lawsuit unless it has first unsuccessfully attempted to settle the dispute through negotiations.
A. Litigation
The Department may file lawsuits in Federal court to enforce the ADA and may obtain court orders including compensatory damages and back pay to remedy discrimination. Under title III
the Department may also obtain civil penalties of up to $ 50,000 for the first violation and $ 100,000 for any subsequent violation.
1. Decisions
Arena Architects Liable for Failure to Provide Line of Sight over Standing Spectators -- A Federal district court judge in Minnesota ruled in favor of the Department of Justice in a suit
to establish the liability of architects for violations of the ADA's new construction standards. In United States v. Ellerbe Becket, the Department asserts that Ellerbe Becket, one of the
nation's largest architectural firms, has violated title III by failing to design and construct new sports arenas in compliance with the ADA Standards for Accessible Design. In denying the
defendant's motion to dismiss, the court found that architects may be held liable for new construction violations and that the ADA requires newly constructed arenas to provide wheelchair seating locations with a line of sight over standing spectators.
Courts Find ADA Suits Against States Constitutional -- In Clark v. California, the U. S. Court of Appeals for the Ninth Circuit ruled that Congress has constitutional authority to subject States to lawsuits under title II of the ADA. The Department of Justice intervened in this case to defend the constitutionality of the ADA. The court held that Congress had the power to abrogate the State's sovereign immunity under its authority to enforce the equal protection rights of the Fourteenth Amendment. The suit was brought by a group of prisoners with developmental disabilities who allege that California prison officials discriminated against them on the basis of disability. Similarly, in Autio v. AFSCME, in which the Department also intervened, the U. S. District Court for the District of Minnesota ruled that Congress has Fourteenth Amendment authority to make States answer to employment discrimination lawsuits under title I of the ADA.
Appeals Courts Disagree on Whether Prisons are Covered by Title II -- The Courts of Appeals have issued contrary rulings in two cases in which the Department filed amicus briefs arguing that title II covers all of the activities of State and local government, including prisons. The Ninth Circuit in Armstrong v. Wilson upheld prison coverage in a suit against the State of California. The court explained that its decision was based on the plain meaning of the statute and the fact that " nothing in the legislative history of the ... ADA reflects an intent by Congress to exclude prisons or prisoners...." The Fourth Circuit in Amos v. Maryland Department of Public Services, however, ruled that prisons are not covered by title II because they are a core State function and Congress failed to indicate specifically its intent to cover them.
D. C. 9- 1- 1 Ordered to Provide Direct Access to TDD Users -- In a title II lawsuit joined by the Department of Justice, a Federal judge in the District of Columbia issued a temporary order
requiring the D. C. Metropolitan Police Department to take immediate steps to provide direct, effective access for TDD users to its 9- 1- 1 system. The order required the police department to
install a back- up TDD system and make policy changes to ensure proper training and disciplining of employees involved in responding to TDD calls. An earlier court- ordered audit by the Department of Justice showed that the D. C. 9- 1- 1 system was incapable of reliably responding to TDD calls. The litigation is continuing with the issues of liability and permanent relief, including damages, still to be resolved.
Justice Continues Nationwide Effort to Defend the Constitutionality of ADA Lawsuits against States -- The Department has intervened in a growing number of suits under both titles I and II of the ADA where States are arguing that the ADA's waiver of State sovereign immunity is unconstitutional. In general, the States are arguing that, because the ADA's protections go beyond equal protection rights guaranteed by the U. S. Constitution, Congress lacks authority under the Fourteenth Amendment to subject States to lawsuits under the ADA. The Department has intervened in each of the following cases to argue that the ADA is constitutionally appropriate legislation to remedy the history of pervasive discrimination against people with disabilities and that therefore the ADA's abrogation of State immunity is constitutional — Courts of Appeals
* Nelson v. Miller ( 6th Circuit) -- title II challenge to alleged lack of privacy in Michigan voting procedures for blind voters
* Pierce v. King ( 4th Circuit) -- title II suit against North Carolina prison officials
* Wright v. Lima Correctional Institution ( 6th Circuit) -- title I reasonable accommodation suit against an Ohio prison
* Dickson v. Florida Department of Corrections ( 11th Circuit) — title I reasonable accommodation suit
District Court
* Anderson v. Pennsylvania Department of Public Welfare ( Eastern District of Pennsylvania) -- title II suit alleging failure to ensure accessibility of health care providers participating in
Medicaid program
2. New lawsuits
The Department initiated or intervened in the following
lawsuits.
U. S. v. Town of Tatum, New Mexico -- The Department filed its first lawsuit alleging a violation of the ADA's retaliation provisions. The suit claims that Tatum, New Mexico, discharged Marvin R. Lyon from his job as emergency medical technician in retaliation for his obtaining a settlement in an earlier ADA lawsuit he filed against Tatum. In that earlier suit, Mr. Lyon
alleged that Tatum violated the ADA when it fired him from his previous position as a police officer. After he received a monetary award as part of settling that lawsuit, officials acting
on behalf of Tatum allegedly began to retaliate against Mr. Lyon because of their displeasure with the settlement and terminated him from his emergency medical technician position.
3. Consent Decrees
Some litigation is resolved at the time the suit is filed or afterwards by means of a negotiated consent decree. Consent decrees are monitored and enforced by the Federal court in which
they are entered.
United States v. City of Pontiac -- The Department of Justice entered into a consent decree resolving its lawsuit against Pontiac, Michigan, which alleged that the city had violated title
I by refusing to hire Dennis Henderson as a fire fighter because of his monocular vision. Despite his condition, Mr. Henderson had performed successfully as a fire fighter for 14 years with a
neighboring jurisdiction before applying to Pontiac for a position. Pontiac relied on hiring standards established by the National Fire Protection Association that disqualify individuals
with monocular vision. Under the consent decree, Pontiac agreed to hire Henderson into a full- time fire fighter position with retroactive benefits and seniority to August 11, 1992. Pontiac
also agreed to provide a financial package to Henderson of approximately $ 105,000.00, including full back pay and compensatory damages in the amount of $ 65,000.00 and full
retroactive pension benefits totaling approximately $ 40,000.00. Pontiac agreed that in the future it would not apply standards that require automatic exclusions of applicants or employees
because of physical or medical conditions. Instead, it will conduct an individual assessment of whether an applicant is qualified or poses a direct threat. Pontiac also agreed that, before rejecting an applicant on the basis that he or she poses a direct threat, it will advise the applicant of that fact and invite the applicant to demonstrate how he or she could safely perform the essential functions of the position with or without reasonable accommodation. Finally, Pontiac agreed to conduct training of its personnel staff and post notices of employee rights under the ADA.
4. Amicus Briefs
The Department files briefs in selected ADA cases in which it is not a party in order to guide courts in interpreting the ADA.
L. C. v. Olmstead -- The Department filed an amicus brief in this case before the U. S. Court of Appeals for the Eleventh Circuit arguing that title II prohibits the unnecessary segregation of
individuals with mental retardation in a Georgia State psychiatric hospital. One of the plaintiffs remains institutionalized despite the recommendation of Georgia's own experts that she be provided services through a community- based program. The other plaintiff was placed in a community program but then denied appropriate State services. The lack of these services threatens to result in her rehospitalization. Given that Georgia currently operates a community- based program, that community placements in Georgia are less expensive than
institutional ones, and that Georgia's experts believe that the most integrated setting appropriate for these plaintiffs is in the community, the Department argued that, in this case, title II requires community placements and appropriate support services.
B. Formal Settlement Agreements
The Department sometimes resolves cases without filing a lawsuit by means of formal written settlement agreements.
Title II
** Stowe Township, Pennsylvania -- A formal agreement between the Department and the Board of Commissioners of Stowe Township, Pennsylvania, resolved a complaint alleging that the Board of Commissioners' public meetings were not accessible to people with disabilities because they were held on the inaccessible second floor of the municipal building. The commissioners agreed to establish a policy by which members of the public can request
modifications to policies, practices, and procedures of the Commission. In addition, the settlement agreement requires the Commission to move its public meetings to an accessible location upon reasonable notice ( no more than one week), and to utilize an existing audio- visual system on the accessible first floor on all occasions when the public meetings are not moved.
Boone County, Indiana -- The Department of Justice entered into an agreement with Boone County, Indiana, to ensure access at the Boone County Courthouse to persons who are hard of hearing. The county agreed to purchase a portable assistive listening system for the courthouse; to have a number of receivers available equal to at least four percent of the total seating capacity of the courtrooms; to train court personnel in the set- up, use, and maintenance of the assistive listening system; and to post a notice in conspicuous areas of the courthouse notifying patrons
of the availability of the system.
Colusa County, California -- The Department entered into a settlement agreement with the Sheriff's Department of Colusa County, California, to resolve a complaint alleging that the
facility was inaccessible to a wheelchair user who had come to visit an inmate in the county jail. Under the agreement the county will make the necessary modifications to provide accessible parking, an accessible path of travel to the front entrance of the building, an accessible front entrance, and accessible restrooms and water fountains.
** Oregon State Lottery Commission -- The Oregon State Lottery will be made accessible to persons with mobility impairments under a negotiated settlement agreement with the Department. The State will require more than 3,000 retail outlets participating in the lottery program to ensure equal access to their lottery- related services by installing accessibility features,
removing barriers through structural modifications, and, in some cases, using alternative methods of providing access to the services. Effective July 1, 1997, all new retailer locations and all locations sold to new owners must be wheelchair accessible; existing retail outlets as of that date have an additional year to make their lottery- related facilities accessible. The agreement also creates a procedure for dealing with complaints about inaccessible lottery retailers.
Grand Rapids, Michigan -- The Department reached a settlement agreement with the 63rd District Court Probation Department regarding auxiliary aids. The agreement provides that, in those proceedings of the court probation department where an interpreter is required to ensure effective communication with an individual who is deaf or hard of hearing, the court will, upon reasonable notice, secure the services of a qualified interpreter. The court also agreed to provide auxiliary aids and services, including interpreters, at the court's expense; to give primary consideration to the request of the individual with a disability when determining what type of auxiliary aid or service is appropriate; and to notify individuals who are deaf or hard of hearing about the availability of auxiliary aids and services through pamphlets, posters, or other appropriate means.
City of Alton, Illinois -- The Department entered into a settlement agreement with the City of Alton, Illinois, ensuring that people with disabilities will have access to the public square at the site of the 1858 Lincoln- Douglas debates. The city purchased a ramp and staging equipment that allows persons with mobility impairments access to all public activities. The city also agreed to consult with local organizations representing persons with disabilities when planning for the new construction or alteration of any public facilities.
Title III
Howard Johnson River's Edge Hotel, Clarksville, Indiana -- The Department reached an agreement with the Howard Johnson River's Edge Hotel resolving a complaint alleging that the hotel assessed a surcharge for allowing a service animal to stay with its owner. The hotel agreed to adopt a written policy incorporating the ADA's definition of service animal. Service animals will be allowed to stay in the rooms of guests with disabilities without any security deposit or other special fee being required. The hotel agreed to distribute the policy to all hotel employees and to post it in a conspicuous place at the hotel front desk.
** Eye Institute of Orange County, Irvine, California -- The Eye Institute of Orange County signed an agreement to treat patients with disabilities on a nondiscriminatory basis. The agreement resolves a complaint against the Institute, a private ophthalmological practice in southern California, alleging that a 15- year old girl was denied an appointment because she has Down Syndrome. Under the agreement, the Eye Institute will adopt a written nondiscrimination policy, post the policy in the lobbies of its offices and distribute it to all employees, require all
employees to attend mandatory training on the policy within 15 days, and pay $ 5,000 in compensatory damages to the girl.
Your Man Tours, Inc., Los Angeles, California -- The Department reached a settlement agreement with Your Man Tours, Inc. ( YMT), a company that organizes vacation tours, to resolve two complaints alleging that the company charged extra to make vacation plans for people with disabilities. The complainants, one of whom uses a wheelchair and the other a walker, requested YMT to accommodate their mobility impairments in making reservations for a vacation trip to Hawaii. Both canceled their plans rather than pay the extra charges which they contend were demanded by YMT. The settlement prohibits YMT from charging extra to make reservations for accessible accommodations. Under the agreement, YMT provided a free trip to Hawaii to one complainant, paid the other complainant $ 1648.90 ( the value of the trip), and made a $ 2,000 donation to Mobility International, USA, a nonprofit organization that distributes information about travel and educational opportunities for persons with disabilities.
Detroit Lions, Detroit, Michigan -- The Detroit Lions agreed to compensate a group of young athletes with disabilities who experienced discrimination when attempting to attend a Lions football game. A sports team of disabled youth won a ticket lottery for school- age teams sponsored by the Lions in which the winners were awarded tickets to Lions professional football games at a cost of one dollar per ticket. When the youngsters tried to redeem their tickets for wheelchair seating, they were told they would have to pay full price for the tickets for the wheelchair locations while other team members who did not use wheelchairs would be able to use the one- dollar tickets for seats. In addition, when the team members using wheelchairs actually purchased full- price tickets, they were not allowed to sit with their teammates in adjoining seats. The Lions agreed to modify their ticketing policy to provide companion seating for accessible wheelchair locations and no longer to require proof of disability in order to purchase tickets for wheelchair seating. The Lions also agreed to give complainants 2,000 tickets to a pre- season game ( valued at $ 70,000); official autographed NFL clothing, souvenirs, and collectibles; and visits to Lions' locker rooms and camps.
Denny's Restaurant, Lumberton, North Carolina -- The Department entered into a settlement agreement with B& G Management, Inc., operator of a Denny's Restaurant in Lumberton, North Carolina, resolving a complaint alleging that the restaurant refused to serve a customer and his wife because he was accompanied by a service animal. B& G agreed to adopt a policy that all persons with disabilities, including those accompanied by service animals, will be welcome in the restaurant, and that no proof of an animal's certification as a service animal will be required.
B& G also agreed to post this policy in the restaurant and train its employees to ensure that it is carried out. In addition, B& G paid $ 1,000 to the complainant in compensatory damages.
C. Other Settlements
The Department resolves numerous cases without litigation or a formal settlement agreement. In some instances, the public accommodation, commercial facility, or State or local government
promptly agrees to take the necessary actions to achieve compliance. In others, extensive negotiations are required. Following are some examples of what has been accomplished through
informal settlements.
A western State governor's mansion installed curb cuts to make a garden accessible, constructed ramps from the mansion's driveway to a terrace and a door, installed an accessible door threshold, and lowered the basin and mirrors and installed grab bars in a public restroom.
A New York State agency established six accessible parking spaces in close proximity to its facility.
A Midwestern State general assembly revised its accessibility policy to allow registered lobbyists with mobility impairments onto the floor of the legislative chambers because the gallery is
not accessible.
A Florida county court house modified its security procedures to reopen an accessible entrance to the public.
A Tennessee county circuit court adopted a policy to provide appropriate auxiliary aids and services to ensure effective communication with individuals with disabilities.
A California medical group agreed to provide interpreters at the office's expense when necessary to ensure effective communication with patients who are deaf or hard of hearing and to notify the
public by posting copies of the policy in its clinics.
II. Mediation
Through a technical assistance grant from the Department, the Key Bridge Foundation is accepting referrals of complaints under titles II and III for mediation by professional mediators
who have been trained in the legal requirements of the ADA. More than 350 professional mediators are available to mediate ADA cases in 45 States.** Over 80 percent of the cases in which mediation has been completed have been successfully resolved. Following are recent examples of results reached through mediation.
* A wheelchair user complained that a large public outdoor swap meet in Texas did not have accessible restrooms. The person also complained that, in order to obtain a permit to use a wheelchair at the event, a person with a disability had to present a letter from his or her physician. The manager of the event agreed to issue permits to wheelchair users when requested without asking for any proof. The manager also agreed to rent an appropriate number of accessible portabl