ADA news news reviews to peruse.

              ADA NEWS
1999
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" News Reviews to Peruse"
Number 59 January 15, 1999
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/ ChiefCounsel/ ADANews/ adanews_ index. htm on the Department's Intranet website.
LONG- TERM CARE INITIATIVE ANNOUNCED - President Clinton announced on January 4th a new federal initiative to provide assistance to individuals with long term care needs, and the families who support them. The four- part, $ 6.2 billion initiative takes important steps to address complex long- term care needs through a $ 1,000 tax credit that compensates for costs Americans incur in connection with long- term care needs or the family caregivers who support them; a new National Family Caregivers Support Program that provides a range
ADA News No. 58 - 1- December 15, 1998
ADA News No. 58 - 2- December 15, 1998
of critical services for caregivers such as respite care, information, and referral; a national campaign to educate Medicare beneficiaries about the programs' limited coverage and how best to evaluate long- term care options; and a proposal to have the federal Office of Personnel Management ( OPM) serve as a model employer by offering quality private long- term care insurance to Federal employees. Although most people with long- term care needs are elderly, a large and growing number of non- elderly Americans have chronic illnesses or disabilities and would benefit from these policies. Ari Fleischer, spokesman for House Ways and Means Committee Chairman Rep. Bill Archer ( R- Texas), said the proposals had " a lot of potential" and would have a good chance of congressional approval if they are not accompanied by tax hikes.
Also, on January 13th President Clinton and Vice- President Gore announced an initiative to improve economic opportunities for people with disabilities. The President announced full funding for the bipartisan Work Incentives Improvement Act, a new $ 1000 tax credit to help with work- related costs and a more than doubling of the government's current investment in assistive technology. All the recommendations from " Recharting the Course" were acted on. ( See following article.)
TASK FORCE REPORT - The Presidential Task Force on Employment of Adults with Disabilities has released its first report, “ Re- charting the Course.” The Task Force was created on March 13, 1998 by Executive Order of the President. “ Re- charting the Course” is intended to inform the President and the public about progress made by the Task Force to date in response to the Executive Order. The report can be found on the Internet at http:// www. dol. gov/ dol/_ sec/ public/ programs/ ptfead/ rechart/ index. htm.
DIFFERING RESULTS FROM FMLA/ ADA - The U. S. Court of Appeals for the First Circuit ( ME, PR, NH, MA, RI) has affirmed the decision of a federal district court dismissing a gas station manager’s ADA claim but granting his claim under the Family Medical Leave Act ( FMLA). The manager, who had been replaced while on FMLA leave for heart surgery, sued under the ADA and FMLA. The employer defended the FMLA claim by asserting that the manager had never physically reported to work following his leave, but the Court held that there is no per se rule that the employee must “ show up on the employer’s doorstep.” On his ADA claim, the employee had argued that the employer failed to reasonably accommodate his disability by refusing to hold open his station manager position until he returned from leave. The Court found that this request to keep his job open for an indefinite amount of time was unreasonable. Watkins v. J & S Oil, CA1, 12/ 30/ 98 ( http:// www. law. emory. edu/ 1circuit/ dec98/ 98- 1002.01a. html).
NON- DISABLED PLAINTIFF CAN BRING ADA RETALIATION CLAIM - The U. S. Court of Appeals for the Third Circuit ( PA, NJ, VI, DE) has ruled that a worker need not prove he has a disability in order to bring a claim that he was ADA News No. 58 - 3- December 15, 1998
retaliated against for pursuing his rights under Title I of the ADA. The trial court - reasoning that the worker’s “ employability problems” were due to a combination of limited skills, limited education, advanced age, and his disability, and that the first three had greater impact than the last - had dismissed the claim, finding that the worker was not substantially limited in the major life activity of working and, therefore, did not have a disability under the Act. The Court’s decision to reverse also served to expand workers' ability to sue under a theory that they were disabled due to a substantial limitation “ in the major life activity of working,” a theory that plaintiffs must use when they can't show that they were disabled from any other " major life activity." The Court, applying EEOC regulations, pointed out that when the major life activity under analysis is work, then a court must compare the plaintiff to the “ average person having comparable training, skills and abilities,” not to the average person in the general population. The Court found that a change in a worker’s shift could alter the terms, conditions, or privileges of employment even though the shift change did not create a “ severe hardship.” Mondzelewski v. Pathmark Stores Inc., CA3, No. 98- 2721, 12/ 23/ 98 ( ftp:// ftp. vcilp. org/ pub/ law/ Fed- Ct/ Circuit/ 3d/ 98a2029p. asc).
WHEELCHAIR RIGHT- OF- WAY CONTROVERSY - Disability advocates are rallying around a woman who late last year was cited for a traffic violation and child endangerment by police in Sandusky, Ohio when she operated her motorized wheelchair in the right- hand traffic lane of a downtown street. The woman, who has muscular dystrophy, was carrying her 4- year- old daughter on her lap at the time she was apprehended. She informed police that she was traveling in the traffic lane only because the adjacent sidewalks did not have curbcuts, as required by the ADA, but was charged nevertheless. A rally was held in Sandusky on December 29, in which advocates called for the city to withdraw the citation and to bring the city’s sidewalks into compliance with the Act. “ If you can't ride on sidewalks your only option is to ride the streets to get from point A to point B,” said supporter Elsie Danevich, who is paraplegic. “ I'm angry,” she said, pointing to her heart. “ We're all angry; it's aggravating that people can't live their lives, and it would be better … if the sidewalks were right and passable.”
ACCESSIBLE GINGERBREAD HOUSE - Dubbed by the Wall Street Journal " the first- ever handicapped- accessible gingerbread house," a creation by the Rochester NY Center for Disability Rights was one of thirty- five gingerbread houses entered this year in Rochester's annual gingerbread art display. The creation is complete with a ramp, a bathroom with an accessible marzipan sink and commode and a candy grab bar. Disability advocate Bruce Darling says that many of the thousands who toured the display paused to read the architectural guidelines for “ visitable"” homes posted in macaroni letters on a sign beside the house. " The idea is to let the public know that homes can welcome disabled visitors. It really gets people thinking," said Darling. To see photos of the house, go to the website of Concrete Change, a group dedicated to removing architectural barriers, at ADA News No. 58 - 4- December 15, 1998
http:// concretechange. home. mindspring. com, and click on the hyperlink at the top of the page.
ASSISTIVE TECHNOLOGY ACT SIGNED INTO LAW - On November 13, 1998, President Clinton signed into law the Assistive Technology Act of 1998. ( See “ ADA News” No. 55, 9/ 15/ 98, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 55. htm).
REQUEST FOR ACCOMMODATION IS NOT PROTECTED AGAINST RETALIATION - According to a recent decision of the U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL), an employee’s request for a job accommodation was not activity protected by the ADA and, thus, any act of the employer allegedly in retaliation for the request is not actionable under the Act. The employee in question sued his employer, claiming it retaliated against him when he requested accommodation of his back injury. The Court found that the employee did not prove he had a disability under the ADA; he had a back injury, but failed to show how it substantially limited any major life activities. Neither could the employee show he was regarded as having a qualifying disability. Finally, the Court found that the employee could not establish a prima facie case of retaliation because his request for an accommodation was not statutorily protected activity. In order for a request for accommodation to be protected, said the Court, an employee must have a reasonable and good faith belief that he was entitled to those accommodations under the ADA. The employee here was not entitled to an accommodation and could not show that his belief that he was disabled was objectively reasonable. Standard v. A. B. E. L. Services, CA11, 12/ 03/ 98 ( http:// www. law. emory. edu/ 11circuit/ dec98/ 97- 9226. opn. html).
JUSTICE SETTLEMENT PROMISES MORE ACCESSIBLE HOTELS - Almost 2,000 hotels are covered by two agreements negotiated by the Civil Rights Division of the U. S. Department of Justice and Bass Hotels & Resorts, which owns, operates or franchises the Holiday Inn and Crowne Plaza hotel chains. Under the terms of the settlement, reservations for rooms accessible to disabled customers now will be guaranteed. “ Travelers with disabilities will be able to make reservations for rooms, instead of having reservations about whether the room will be there,” a Justice spokesman said. Hotel patrons with disabilities had complained that accessible rooms they had reserved in advance were not available when they got to the hotel. The company also will spend $ 75,000 over the next three years to set up a mediation program to handle complaints using 430 mediators from the Key Bridge Foundation who are trained to resolve complaints about access. In addition to the two agreements with Bass, nineteen franchise- holders who operate individual hotels in the chains signed separate agreements to modify their facilities so patrons with disabilities can use them more easily. Some hotels lacked accessible entrances, bathrooms with grab bars and maneuvering space for wheelchairs, or closed captioned televisions or telecommunication devices for the deaf, the department said. The Justice Department is currently investigating three other hotel chains and 200 individual hotels based on complaints filed under the act. ADA News No. 58 - 5- December 15, 1998
APA PRESIDENT SAYS MENTALLY ILL NOT PRONE TO CRIMINAL ACTIVITY - People with mental illness are no more likely than the general population to be violent, according to the president of the American Psychiatric Association. Dr. Rodrigo Munoz said that an incident in which a man believed to be mentally ill pushed a woman off a New York subway platform to her death was tragic, but in no way proves that the mentally ill are especially dangerous. Munoz said several studies have shown that mentally ill people are no more likely than anyone else to become violent. “ The conditions likely to increase the risk of violence are the same whether a person has mental illness or not,” Munoz's statement said. “ The risk of violence for people with mental illnesses is most associated with alcohol abuse -- just as it is in the rest of the population.”
WHAT’S NEW AT EEOC - According to Peggy Mastroianni, associate general counsel for the EEOC, the issuance of a guidance document on ADA reasonable accommodation has been set as an agency priority by new director Ida Castro. Mastroianni could not say when the guidance would be issued.
Congress allotted $ 13 million to the EEOC in fiscal year 1999 to be used toward developing the agency’s alternative dispute resolution programs. These funds will allow the agency to “ significantly” expand its ADR program, says Director Castro. Legal authorities have stated that ADA cases are particularly well- suited for mediation because of the Act’s requirement for an “ interactive process” between employee and employer.
The Commission will step up efforts in 1999 to protect the rights of people with mental retardation, says Commissioner Paul Steven Miller. Miller acknowledged that the Commission has been less than successful in protecting those rights, despite a record of success elsewhere. Few charges are filed with the EEOC by people with mental retardation ( approximately .5% of all charges filed), according to Miller, and their advocates are often hesitant about filing charges at the risk of damaging the relationship with the employer.
CLIMBING AN ESSENTIAL JOB FUNCTION - A federal district court in New York has ruled that a state asbestos inspector whose back and knee problems prohibited his climbing and working in confined spaces is not a qualified individual with a disability. The inspector sued the state under the ADA after the state fired him because he could not do his job. The court agreed with the state that the ability to get to any area where asbestos could be located was one of the job’s essential functions and could not be reasonably accommodated. Jackan v. New York State Dept. of Labor, 8 ADCases 1385, NDNY, 10/ 23/ 98.
LIFTING REQUIREMENT REVISITED - A hospital attendant restricted from lifting more than twenty or thirty pounds due to a back injury is no longer qualified for her position and, therefore, not entitled to the protections of the ADA, ADA News No. 58 - 6- December 15, 1998
the U. S. Court of Appeals for the First Circuit has ruled. The attendant, who was also unable to perform any task involving repeated bending, sued after being fired for refusing to return to work from disability leave. In deciding that lifting was essential to the attendant position, the Court found the hospital’s written job description - which required physically moving patients and the ability to “ push/ pull up to 50 pounds” - decisive. The attendant was unable to suggest an accommodation that would enable her to perform all the essential functions of the job.
ACCOMMODATIONS FOR HIV- POSITIVE EMPLOYEES - With advances in the treatment of people with AIDS or who are infected with HIV, infected workers are living longer, more healthy lives. Workers with the infection are staying in the workplace longer, sometimes indefinitely. According to the Center for Disease Control, AIDS fell in 1998 from the eighth to the fourteenth leading cause of death in the United States. ( The CDC estimates that between 650,000 and 900,000 people in this country are currently living with AIDS or HIV.) As a result, employers are more frequently dealing with accommodation issues involving HIV- positive employees. Affected employees can experience various side effects of treatment, including nausea and fatigue, and be the target of harassment by co- workers. The CDC recommends employers have written HIV policies, including information on benefits and accommodations; train supervisors in dealing with HIV- positive workers; and hold training sessions for employees “ to remove any myths or fears that people have about working with someone with AIDS.”
TEMPORARY CONDITION, NOT DISABILITY, LED TO DISCHARGE - A federal district court in New York has issued a decision which draws an interesting distinction between who is and who is not covered by the ADA. The case involved the discharged director of recreation at a nursing home, who sued her employer claiming unlawful discharge and failure to accommodate. The court ruled that the director is a qualified person with a disability because of a permanent hip condition she has had since birth. She was discharged, however, because of the effect on her job caused by what her physician diagnosed as a temporary flare- up of phlebitis not connected with her hip condition. The court ruled that determining whether a claimant is a qualified individual with a disability should hinge on the “ discreet condition” at question in the adverse job action, “ not the individual.” “ The employer’s acts must be linked to the qualifying disability.… The condition which gave rise to the circumstances surrounding [ the director’s] discharge does not qualify as a disability under the Act,” the court ruled.
HOUSING PREFERENCE NONDISCRIMINATORY - The General Accounting Office released a report on November 12 which supported an earlier U. S. Department of Housing and Urban Development finding that a 1992 law that permits federally- assisted housing projects to grant a preference for elderly tenants has not resulted in discrimination against people with disabilities. Some disability advocates have maintained that HUD has used the law to discriminate against prospective ADA News No. 58 - 7- December 15, 1998
tenants who have disabilities. According to the GAO report, HUD officials “ reported that their projects’ occupancy composition has remained about the same over the last five years.”
In a related story, President Clinton announced November 28 that the federal government will make available $ 130 million in housing vouchers available to help more than 17,000 people with disabilities obtain affordable rental housing. The vouchers will cover up to 70% of a tenant’s rent if he or she meets income guidelines. The President also announced the release of $ 696 million in HUD grants to nonprofit groups to create more than 8,200 subsidized apartments for poor senior citizens and people with disabilities. The grants will provide housing for approximately 12,400 people.
DRUG- RELATED CONDUCT CAUSED FIRING, NOT ADDICTION - The U. S. Court of Appeals for the Third Circuit has affirmed the trial court’s dismissal of an ADA lawsuit brought by a former store manager of Circuit City. The manager, who was addicted to alcohol and heroin since age seventeen, had been hired by Circuit City after receiving treatment and abstaining from drugs and alcohol for over ten years. He was later promoted to store manager, a position that, in part, required him to enforce Circuit City’s drug policies. The manager told his superior about his addiction history, and received assurance that no action would result. Two years later, however, the manager resumed drinking, and shortly thereafter began buying and using heroin with one of his subordinates. In 1994, the manager entered the employer’s employee assistance program (“ EAP”). In September, while still in the EAP, the manager admitted in writing to using alcohol and heroin regularly before, during and after work, purchasing drugs through his subordinate, and failing to report his subordinate’s drug use, all violations of the employer’s policy. He was fired and sued Circuit City, claiming he was fired because of his protected status as a person with a drug addiction. The trial court found that the manager was a “ current” user of illegal drugs and, therefore, not protected under the Act. The manager appealed, claiming that he had not used drugs or alcohol since enrolling in the EAP and was not a “ current drug user” at the time he was fired. The Appellate Court did not address the issue of current drug use, finding instead that no reasonable jury could find that the manager “ was discharged for his disability rather than his drug use and concomitant violations of Circuit City drug policy.” Salley v. Circuit City Stores, Inc., CA3, No. 97- 1947, 11/ 19/ 97.
DRA AWARDS - Disability Rights Advocates, a nonprofit civil rights organization focusing on the rights of people with disabilities, announced on November 24 the winners of its annual awards. Receiving the organization’s “ Eagle” award for excellence were U- Haul International Inc., Sears, Roebuck and Company, and NBC’s “ Dateline.” At the spectrum’s other end, HealthNet, Wal- Mart, Kmart and U. S. Senator Slade Gordon received the organization’s “ Turkey” award for “ impeding the progress” of people with disabilities. The DRA’s website, including a link to the awards page, is at www. dralegal. org.
ADA News No. 58 - 8- December 15, 1998
NAADAC SPRING CONFERENCE - The National Association of ADA Coordinators, a national organization of which the Department has long been a member, is holding its national conference April 13th through the 16th in Washington, D. C. Presentations will be given by a number of representatives from government and the private sector, including the EEOC and Office of Civil Rights of the Justice Department. DEP Disability Services Coordinator ( formerly known as ADA Coordinator) Audrey Marrocco will represent the Department at the conference.
YOUTH LEADERSHIP CONFERENCE - The third annual Leadership Conference for Youth with Disabilities, co- sponsored by the National Council on Disability and the Social Security Administration and supported by the U. S. Department of Education, will be held in Alexandria, Virginia from June 22nd through 26th.
CITY FAILED TO ACCOMMODATE - The City of Erie, Pennsylvania is required pay nearly $ 100,000 in compensatory damages and health expenses to a former employee who was injured on the job. The city failed to provide a reasonable accommodation to the employee after his injury. In addition, the city has been ordered to pay the employee back pay, front pay and attorney fees. Marinelli v. City of Erie, 1998 U. S. Dist. LEXIS 17768 ( WDPa. 1998).
STATE DOES NOT ENJOY 11TH AMENDMENT IMMUNITY - The full U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) has affirmed an earlier vacated panel decision of that Court that held that the Eleventh Amendment of the U. S. Constitution does not bar an ADA lawsuit against a state employer. The Court found an express intention on the part of Congress that states’ immunity is abrogated under the ADA, and that the ADA was enacted pursuant to a valid exercise of congressional power granted it by the Fourteenth Amendment. See “ ADA News” No. 54, 8/ 15/ 98, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 54. htm
SUPREME COURT TO EXAMINE SEVERAL ADA CASES - The U. S. Supreme Court has granted certiorari ( granted appeal) in three cases involving interpretation of the ADA. In the first, the High Court will review the decision of the U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, NM, KS, OK) in Sutton v. United Air Lines, Inc., 130 F. 3d 893 ( 10th Cir. 11/ 26/ 97)( http:// lawlib. wuacc. edu/ ca10/ cases/ 1997/ 11/ 96- 1481. htm). See “ ADA News” No. 49, 3/ 15/ 98, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 49. htm. That court held that although an airline pilot’s uncorrected vision was a physical impairment within the meaning of the ADA, the pilot’s corrected vision did not substantially limit her major life activity of seeing and is therefore not a “ disability” under the ADA. EEOC interpretive guidelines provide that “[ t] he existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices.” On review, the Supreme Court will decide ( 1) whether a pilot is excluded from protection under the ADA when her uncorrected vision constitutes a physical impairment under the ADA but the pilots’ vision can be ADA News No. 58 - 9- December 15, 1998
corrected; ( 2) whether courts should defer to the EEOC Interpretive Guidance that disabilities should be analyzed in their corrected state; and ( 3) whether an airline pilot is considered “ disabled” under the ADA for having poor vision.
In the second case, also involving mitigating measures, the Court will review last year’s decision of the Tenth Circuit Court in Murphy v. United Parcel Service, Inc., 141 F. 3d 1185 ( 10th Cir. 3/ 11/ 98)( The decision of the federal trial court was reported in “ ADA News” No. 34, 12/ 13/ 96, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 50. htm.) At issue in this case is ( 1) whether the Act requires that a mechanic be evaluated for a hypertension- related disability in his unmedicated state and ( 2) whether a genuine dispute existed about whether the employer regarded the mechanic as disabled and fired him because of his hypertension. Without medication the mechanic is hypertense. He was hired by UPS as a mechanic after a health exam, required by the Department of Transportation ( DOT), showing his blood pressure to be within normal range. UPS terminated him after a UPS company nurse concluded that his blood pressure did not meet the DOT’s requirements for commercial truck drivers. The circuit court held ( 1) the determination of whether an individual’s physical or mental impairment substantially limits major life activity under the ADA’s definition of “ disability” should take into consideration mitigating or corrective measures and, thus, ( 2) the hypertension, when medicated, did not substantially limit him in any major activity.
The third case for review involves the qualifications of a commercial driver under U. S. Department of Transportation regulations. A monocular- visioned truck driver claimed that his employer discriminated against him based on his visual disability in violation of the ADA. The driver was terminated after he was denied certification to drive commercial vehicles when doctors discovered that he had 20/ 200 vision in his left eye caused by amblyopia or “ lazy eye” that cannot be corrected. The driver successfully obtained a waiver of the regular vision requirements under the Federal Highway Administration’s vision waiver program, instituted to bring DOT’s standards in compliance with the ADA based on his impeccable driving record and his ability to drive well despite the disability. The employer refused to reconsider his termination even with the waiver. The U. S. Court of Appeals for the Ninth Circuit ( AK, HI, CA, NV, WA, OR, ID, AZ) held that a truck driver with monocular vision who received a waiver of the regular vision standards is a “ qualified” individual with a disability under the ADA. At issue is whether monocular vision is a “ disability” under the ADA, whether a driver of a commercial vehicle with monocular vision is a “ qualified” individual under the ADA even though the employee fails to meet minimum vision requirements set out by the DOT, and whether an employer must adopt an experimental waiver program as a means of “ reasonable accommodation.” The case below is Albertsons, Inc. v. Kirkingburg, 143 F. 3d 1228 ( 9th Cir. 1998).
REFUSAL TO PARTICIPATE IN PROCESS DOOMS ADA CLAIM - An employee’s ADA claim was correctly dismissed on evidence that she had refused to provide her employer with information medical information about her disability, said the U. S. Court of Appeals for the Tenth Circuit. The employee, who was on disability leave from her job after an automobile accident, refused to authorize her treating physician to complete a medical certification form requested by the employer in order to continue disability benefits. In confirming the trial court’s dismissal, the Appellate Court found the employer’s request for information was reasonable to determine an appropriate job accommodation in the event the employee returned to work. Templeton v. Neodata Services., Inc., No. 98- 1106, CA10, 12/ 10/ 98 ( http:// lawlib. wuacc. edu/ ca10/ cases/ 1998/ 12/ 98- 1106. htm).
ANNOTATION - Online Course Announcement: EASI
1) EASI Online Course Announcement
Modern technology has opened the doors to mainstream learning for students with disabilities through the use of adaptive computer technology, and now with the web, it brings the entire world of information to them. Here is an online training opportunity to help you create an accessible learning and work place.
Starting Jan. 18, the training is delivered by email over a six- week period. You can do it at your own pace. You can interact with experienced teachers. You can interact with other people like yourself working to provide an access to information technology. ADAPT- IT provides information on general access to computer systems and information technology.
Check out http:// www. rit. edu/~ easi
EASI ( Equal Access to Software and Information) is a non- profit organization affiliated with AAHE ( The American Association for Higher Education).
Adapt- it January 18
Schools and universities can now provide a barrier- free learning environment. In fact, by law they are required to do so. This same level of access to the workplace is provided by these same technologies, and businesses and other organizations will benefit from this workshop as well.
Topics to be covered include:
Lesson 1: Personal introductions
Lesson 2: Introduction and Definitions
Lesson 3: Hands- on Experience With Adaptive Software
Lesson 4: Demographics and Reasons to Adapt
Lesson 5: It's the Law
Lesson 6: Adapt- it Video and Resource Manual
Lesson 7: Physical Access
Lesson 8: Alternate Input Issues
Lesson 9: Alternate Output Issues
ADA News No. 58 - 10- December 15, 1998
Lesson 10: Compensatory Strategies and Lab Etiquette
Lesson 11: Putting It All Together
Lesson 12: Planning and Funding
The registration fee for the adapt- it workshop includes a video, resource manual, and the book Information Access and Adaptive Technology published by Oryx Press in 1997. Registration information and a complete syllabus can be found at http:// www. rit. edu/~ easi
** Note EASI- SEM, the on- line workshop focusing on access to science and math for students with disabilities also begins Jan. 18 and information also is at http:// www. rit. edu/~ easi
N
orman Coombs, Chair of EASI
ADA News No. 58 - 11- December 15, 1998
ADA News No. 60 - 12- February 15, 1999
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" News Reviews to Peruse"
Number 60 February 15, 1999
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/ ChiefCounsel/ ADANews/ adanews_ index. htm on the Department's Intranet website.
PROTESTORS URGE STATE ATTORNEY GENERAL TO STAY OUT OF LAWSUIT - About twenty protestors staged a demonstration in the lobby of Attorney General Mike Fisher’s Strawberry Square office in Harrisburg last month to urge Fisher to keep Pennsylvania from joining in an ADA case currently pending in the U. S. Supreme Court. The case involves an action by two Georgia women with disabilities who sued the State over a Georgia requirement that they receive care in an institution, not in their homes. The Supreme Court will decide how far states must go to accommodate individuals in an “ integrated setting.” The Pennsylvania protestors from ADAPT (“ American Disabled for Attendant Programs Today”) of Central Pennsylvania, who see the case as rolling back protections ADA News No. 60 - 13- February 15, 1999
won under the ADA, do not want Pennsylvania to join the growing list of states joining in the lawsuit on behalf of Georgia. An OAG spokesman informed the demonstrators that Fisher and Governor Ridge have decided that Pennsylvania would not be joining in the appeal. The ADAPT website is at http:// www. adapt. org/. The case - L. C. v. Olmstead, 138 F. 3d 893 ( 11th Cir. 1998) - can be found at http:// www. law. emory. edu/ pub- cgi/ print_ hit_ bold. pl/ 11circuit/ apr98/ 97- 8538. man. html? americans+ with+ disabilities+ act# first_ hit/.
FEDERAL DRUG TESTING LAW SUPERCEDES STATE CONSTITUTION - The U. S. Court of Appeals for the First Circuit ( ME, NH, PR, RI, MA) has affirmed a lower court decision denying relief to two transit policemen of the Massachusetts Bay Transportation Authority who challenged the right of the MBTA to conduct random drug and alcohol tests of transportation workers under the federal Omnibus Transportation Employee Testing Act of 1991. The federal act requires that certain transportation workers in “ safety- sensitive” positions be tested periodically for drug and alcohol use. The policemen brought suit, arguing that the right to be free from unreasonable searches and seizures guaranteed by the Massachusetts constitution supplanted the federal law. The Court disagreed, stating that the federal government has the right to impose conditions on recipients of federal funds, including drug and alcohol testing. O’Brien v. Massachusetts Bay Transportation Authority, No. 98- 1502, CA1, 12/ 4/ 98 ( http:// www. law. emory. edu/ 1circuit/ dec98/ 98- 1502.01a. html).
NEW ADAAG MANUAL - The U. S. Architectural and Transportation Barriers Compliance Board, known as the Access Board, has developed an interpretive manual to assist in the use of its ADA Accessibility Guidelines ( ADAAG) for buildings and facilities. Those interested in placing their name on a waiting list for a copy, to be mailed on publication, should call ( 800) 949- 4232 ( V/ TTY).
The Access Board has scheduled regulatory negotiating committee meetings on outdoor developed areas for April 27- 30 and July 13- 14 in Washington, D. C.
TRAINING OPPORTUNITIES - The President’s Committee on Employment of People with Disabilities ( PCEPD) is sponsoring an employment fair, featuring job opportunities for people with disabilities nationwide. The event will be held in Washington, D. C. on April 24, 1999. For more information, interested persons may call ( 248) 656- 1700 ( V/ TTY).
The ADA Information Center is in the process of developing a training course for building officials and design professionals on the accessibility requirements of the ADA and the relationship of those requirements to model building codes. The program will focus on the new ADAAG interpretive manual, and aims to help building officials and environmental decision makers better understand and implement accessibility into the built environment. Persons interested in receiving more information should call the ADAIC at ( 800) 949- ADA News No. 60 - 14- February 15, 1999
4232 ( V/ TTY).
The Center for Human Services Development at the University of Maryland is sponsoring “ Diversity and Disability in the Workplace: The Winner’s Circle,” a “ train the trainer” seminar in Lancaster on April 6th and 7th, addressing employment issues for people with disabilities. Scheduled subjects include reasonable accommodation, effective interviews, myths and stereotypes about people with disabilities, the ADA, and employer concerns.
The Center for Human Services Development is also offering the following courses at nearby locations:
·
“ Working Relationship: Job Development/ Sales Techniques,” February 2, 1999, Norfolk, VA
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“ Promoting Employment for People with Serious Mental Illness,” February 3, 1999, Columbia, MD & March 31, 1999, Washington, DC
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“ Change Strategies for Challenging Behaviors,” February 9, 1999, Washington, DC
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“ Natural Supports in Action,” February 22, 1999, Richmond, VA & March 10, 1999, State College, PA
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“ Supervision & Job Coaching,” April 15, 1999, Washington, DC
For information on any of these courses, contact the Center at ( 301) 405- 4573.
The American Foundation for the Blind and Mississippi State University’s Rehabilitation Research and Training Center on Blindness and Low Vision is sponsoring a conference “ Focus on Employment: Breaking Down the Barriers,” March 3- 5 in Washington, D. C. For information, contact Irene DuPonte at ( 212) 502- 7654.
INTERESTING INTERNET SITES - You may want to check out the following disability- related websites:
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The National Center on Accessibility ( NCA) at www. indiana. edu/~ nca/. Information on disabilities and parks, tourism and recreation.
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The Architectural Transportation Barriers Compliance Board ( Access Board) at www. access. gov/ bfdg/ adfig. html/. Accessibility information for reference.
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The Eastern Paralyzed Veterans Association at www. epva. org/. Comprehensive disabilities site. Click on “ Barrier- Free Architecture” to research a multitude of questions on barrier removal.
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Project Action at www. projectaction. org/. A national technical assistance program designed to assist people with issues of transportation accessibility. ADA News No. 60 - 15- February 15, 1999
ARTICLE PURPORTS TO SHOW ILL EFFECTS OF ADA - A provocative article published by the National Bureau of Economic Research ( NBER) - “ Consequences of Employment Protection? The Case of the Americans with Disabilities Act” - suggests that the ADA has had a negative effect on the employment of men with disabilities of all working ages and women with disabilities under age 40. According to the article, the effect appears to be larger in medium size businesses and in states where there have been more ADA- related discrimination charges. “ Although the ADA was meant to increase employment of the disabled, it also increases costs for employers,” argues the paper. “ The net theoretical impact turns on which provisions of the ADA are most important and how responsive firm entry and exit is to profits.” According to data presented in the paper, estimates of effects on hiring and firing suggest the ADA has actually reduced hiring of people with disabilities, but has had no effect on separations of employees with disabilities or on persons without disabilities. The entire paper is available for five dollars on line, and the abstract is free at http:// nberws. nber. org/ papers/ W6670.
BRAGDON v. ABBOT EPILOGUE - You may recall the case Bragdon v. Abbot, the decision of the U. S. Court of Appeals for the First Circuit that was the first ADA case decided on appeal by the U. S. Supreme Court. The case involved a dentist who informed a patient who was HIV- positive that she could be treated only in a hospital, not in the dentist’s office, and that the patient would have to absorb the additional cost of hospital treatment. In a landmark decision, the Supreme Court last term held that reproduction is a major life function, that symptomless HIV infection is a substantial limitation on reproduction, and therefore the patient had a disability under the ADA. The case was remanded to the First Circuit to determine if the patient presented a “ direct threat.” The latest Circuit Court decision found that the use of universal precautions precluded the risk of filling the patient’s cavity in the dentist’s office, as opposed to doing so in a hospital, and that no direct threat existed. Abbot v. Bragdon, No. 96- 1643, CA1, 12/ 30/ 98 ( http:// www. law. emory. edu/ 1circuit/ dec98/ 96- 1643.01a. html).
FIREFIGHTING NOT ESSENTIAL TO FIRE CHIEF JOB - The U. S. Court of Appeals for the Sixth Circuit ( MI, OH, KY, TN) has affirmed a lower court’s finding that a fire department unlawfully fired an assistant fire chief who could no longer fight fires. The chief, who could not perform fire fighting duties because of a heart condition, argued that fire fighting is not an essential function of the assistant chief job, and the city failed to prove the contrary. The chief argued that his job was primarily administrative, and the court held that it was the city’s burden to prove that the ability to fight fires was an essential function of his job. The appellate court also dismissed the defendant’s contention that the lower court erred when it found that the chief posed a “ direct threat” to public safety. Hamlin v. Charter Township of Flint, Nos. 97- 1026/ 2105/ 2129, CA6, 1/ 8/ 99 ( http:// www. law. emory. edu/ 6circuit/ jan99/ 99a0007p. 06. html). ADA News No. 60 - 16- February 15, 1999
FAILURE TO COMPLY WITH EXAM ORDER - A physician who lost both legs to diabetes- related complications and whose job involved extensive walking must submit to a medical fitness examination as required by his employer, the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) has held. The physician was accommodated by his employer after his first leg amputation but, upon having his other leg amputated, the employer requested that he report for an independent medical examination. The physician refused, was suspended and sued under the ADA. The Court found that the employer had tried to accommodate the physician, but that the extent of his disability remained uncertain until he underwent a medical examination, which was a job- related business necessity. Hennenfent v. Mid Dakota Clinic, CA8, 12/ 29/ 98 ( 8 ADCases 1537) ( http:// www. wulaw. wustl. edu/ 8th. cir/ Opinions/ 981229/ 981992. P8).
IBM LAUNCHES TALKING WEB BROWSER FOR THE BLIND - IBM has announced the availability of a new talking web browser that opens the doors of the World Wide Web for blind and visually- impaired computer users. The new software, called Home Page Reader for Windows, provides Internet access by speaking aloud the information found on a Web site. The new software, available in U. S. English, joins the original Japanese version of the product. IBM announced that it intends to translate Home Page Reader into other languages this year. For more information, visit the IBM Special Needs Systems Web site at http:// www. austin. ibm. com/ sns or call 1- 800- 426- 4832.
AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES - The American Association of People with Disabilities is a non- profit, non- partisan, cross- disability organization whose goals are unity, leadership and impact. Membership is available to anyone interested. For more information, go to http:// www. aapd- dc. org/.
NATIONAL AGREEMENT REACHED WITH CHEVRON - Chevron and the Disability Rights Education and Defense Fund ( DREDF) have reached a comprehensive agreement that will improve access for customers with disabilities at stations owned by Chevron throughout the United States. The amicable agreement resulted from the settlement of a class action lawsuit filed under the ADA. As part of the agreement, which covers more than 1,600 stations owned by Chevron, the company will survey each station and complete any necessary improvements within the next five years. In addition, Chevron has agreed to broaden its existing employee training program, adding more accessibility information to enhance employee sensitivity and increasing the level of service offered to customers with disabilities. “ This agreement is consistent with Chevron's business philosophy and complements efforts already under way to make Chevron products and services accessible to everyone,” said Dave Reeves, general manager of retail marketing for Chevron Products Co. He noted that many Chevron stations are already accessible and/ or provide services, such as fueling assistance, to those with disabilities. ADA News No. 60 - 17- February 15, 1999
PITTSBURGH SETTLES TRCIL ‘ CURB- CUT’ LAWSUIT - Three Rivers Center for Independent Living ( TRCIL) has announced the settlement of the “ curb- cut” lawsuit filed against the City of Pittsburgh in November of 1997. TRCIL had filed suit to correct what the organization saw as the city’s failure to comply with the ADA by not installing curb ramps on newly repaved streets. The ADA required that public entities draft transition plans by July 26, 1992, identifying structural changes needed under the ADA. Structural changes, including curb cuts, were to be completed by January 26, 1995. The TRCIL website, which contains much information about accessibility in the City of Pittsburgh, is at http:// www. contrib. andrew. cmu. edu/ usr/ trcil/ trcil- home. html.
WHEELCHAIR USER FOUND GUILTY - A Municipal Court judge has found Kelly Dillery - the Sandusky, Ohio wheelchair user cited for jaywalking and child endangerment ( see “ ADA News” No. 59, 1/ 15/ 99, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 59. htm) - guilty of being a pedestrian in the roadway. “ I have no choice under the law but to find you guilty,” Judge O’Brien said at the conclusion of the 90- minute trial. “ I don’t need your money … but you have to stay out of the middle of the road,” O’Brien said. “ None of us want to see you get hurt.” City Prosecutor Rob DeLamatre said the trial was about safety. “ We have to protect her.” Dillery said she is relieved to have this case behind her, but said she is concerned about the guilty verdict as she prepares to defend herself against a second pedestrian- in- the- roadway charge and a more serious child- endangering charge dating back to last summer. Go to www. sanduskyregister. com and search “ Dillery” for more up to date articles.
CONCENTRATION NOT MAJOR LIFE ACTIVITY - A K- Mart pharmacy employee, diagnosed with severe depression, was fired when her performance began to decline, including her mislabeling of prescriptions. She sued under the ADA, contending that her depression was a disability because it affected her ability to sleep and concentrate. The U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, NM, KS, OK) found that, while sleep is a major life activity, the employee only documented periodic, not substantial, sleep problems. Concentration, said the Court, may be “ a significant and necessary component of a major life activity,” but it is not an activity itself. The Court affirmed summary judgment in favor of the employer. Pack v. Kmart Corp., No. 97- 7120, CA10, 12/ 29/ 98 ( 8 ADCases 1565)( http:// lawlib. wuacc. edu/ ca10/ cases/ 1998/ 12/ 97- 7120. htm).
CALIFORNIA PARKS ALLEGED NOT ACCESSIBLE - The California Department of Parks and Recreation has been sued by a group of Californians who claim that State Parks are not meeting ADA and state guidelines for accessibility. Plaintiffs - which include the group Disability Rights Advocates and the California Council for the Blind - allege that Parks facilities are inaccessible and do not provide interpretive guides for visitors with sight or hearing impairments. A Parks spokesman denied that the department has been lax in implementing the laws. “ As funding becomes available for our projects, we definitely take ADA into account.”
INDIVIDUAL LIABILITY - A California state appeals court has decided that supervisors cannot be found individually liable under the ADA. Although the ADA includes the word “ agent” in its definition of “ employer,” the court found that it was Congress’ intent that employers be responsible for the acts of individual supervisors, not vice versa.
In Pennsylvania, by comparison, a federal district court has found that supervisors can be found individually liable under the State’s anti- discrimination law, the Pennsylvania Human Relations Act. The case involved a sexual harassment claim brought under the PHRA and Title VII by an employee against her employer, three individual managers and the employer’s vice president. The court refused to dismiss the individual defendants from the lawsuit. “ The PHRA goes further than Title VII to establish accomplice liability for individual employees who aid and abet a § 955( a) violation by their employer,” stated the court. “[ A] supervisory employee who engages in discriminatory conduct while acting in the scope of his employment shares the intent and purpose of the employer and may be held liable for aiding and abetting the employer in its unlawful conduct.… Thus, a supervisor’s failure to take action to prevent discrimination, even when it is the supervisory employee’s own practices at issue, can make him or her liable for aiding and abetting the employer’s insufficient remedial measures.” In addition to prohibiting gender discrimination, the PHRA prohibits discrimination on the basis of disability. Wasserman v. Potamkin Toyota, Inc., Springfield Auto Outlet, Hyman, Parrilla, and Weisen, No. 98- 0792, USDC EPa, 10/ 11/ 98 ( 1998 LEXIS 16769, 78 FEP 446).
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" News Reviews to Peruse"
Number 61 March 15, 1999
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.) ( bair. patrick@ dep. state. pa. us). This publication can also be located at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP Intranet website.
SOUNDS LIKE A GREAT PLACE TO WORK - The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) has rejected the harassment claims of a black female, finding that her obnoxious co- worker had not singled her out for abuse, but mistreated everyone equally. Several of the claimant’s fellow employees, some male and white, had complained about the co- worker, and he had been warned about his abusive behavior. The Court found there was “ nothing inherently sexual or racial” about the co- worker’s treatment of the claimant, and that “ the evidence demonstrates that [ the claimant] was not singled out for abusive verbal treatment.” Hardin v. S. C. Johnson & Son, CA7, No. 98- 2058, 1/ 28/ 99 ( http:// www. kentlaw. edu/ 7circuit/ 1999/ jan/ 98- 2058. html).
EMPLOYEE FAILED TO REQUEST ACCOMMODATION - An employer is not liable under the ADA for failing to accommodate an employee where the specific accommodations were not requested until after the termination, according to the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR). The employee, who had multiple sclerosis, had been accommodated by the employer, but still failed to perform satisfactorily. After several warnings, the employee was fired. On the date she was terminated, the employee asked for additional accommodations, which the employer refused. The Court pointed out that the employee had never asked for additional accommodations prior to her termination date, and that she was the only one who could accurately identify her need for accommodations. Mole v. Buckhorn Rubber Products Inc., CA8, No. 98- 1500, 2/ 1/ 99 ( http:// ls. wustl. edu/ cgi- bin/ 8th/ release. pl).
FIRED SEPTA DRIVER GETS ADA TRIAL - A bus driver with SEPTA was permitted to proceed to trial by a federal district court on his claim that he was fired because of past alcohol use. The driver had entered a rehabilitation program after twice testing positive for alcohol. He was fired shortly after being released from the program. He sued and SEPTA moved to dismiss the case. The ADA News No. 61 - 20- March 15, 1999
court rejected SEPTA’s argument that the driver was not a qualified individual with a disability at the time he was fired, and added that the driver could also proceed on a perception or record of disability theory. Wilson v. Southeastern Pennsylvania Transportation Authority, EDPa, No. 98- 3411, 1/ 26/ 99.
ADA HOSTILE WORK ENVIRONMENT - In what may be the first hostile work environment claim granted under the ADA, the State of New Jersey has been ordered to pay $ 227,000 to a State employee who was mercilessly harassed on the job. The employee, who had dyslexia as well as several other cognitive disorders, was the object of co- workers’ pranks, jokes, threatening remarks and conduct. His supervisors did nothing to stop the conduct, and actually engaged in harassing conduct themselves. “[ I] f the disabled are to be afforded the same level of protection as racial minorities and women under federal anti- discrimination legislation, they must be allowed to bring claims of hostile work environment based on disability discrimination similar to those recognized in the context of racial and gender discrimination,” stated the court. Lanni v. New Jersey, DNJ, CA No. 96- 3116 ( AET), 1997.
LIFEWORKS: LIVING WITH A DISABILITY - The Spring 1999 edition of the Bryn Mawr Alumnae Bulletin offers a series of articles devoted to the discussion of disabilities, particularly in the academic setting. “ Any of us may find ourselves disabled as a result of genetics, accident, trauma or illness. Sooner or later most of us will find ourselves ‘ differently abled’ as a result of the natural aging process. Although many argue that being born with a disability differs fundamentally from acquiring one along the road of life, we hope that the stories told here help readers understand the coping mechanisms and self perceptions of other people as well as inspire them to examine their own.” See http:// www. brynmawr. edu/ Alumnae/ bulletin/ home. htm for the online edition of the Alumnae Bulletin.
MANAGER’S HARASSMENT CANNOT BE IMPUTED TO EMPLOYER - A store manager’s harassment of a subordinate employee did not warrant a punitive damages award against her employer where it is not shown that the manager is “ high up the corporate hierarchy” or that “ higher management countenanced or approved [ the manager’s] behavior.” This according to a recent decision by the U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL), that affirmed a federal jury’s compensatory award of $ 125,000 to two employees, but threw out a $ 250,000 punitive damages award. The Court found that the claimants failed to prove that the employer - as opposed to people working for it - was responsible for the harassment. Dudley v. Wal- Mart Stores Inc., CA11, No. 94- D- 508- N, 2/ 9/ 99 ( http:// www. law. emory. edu/ 11circuit/ feb99/ 97- 6416. man. html).
VOTER ACCESSIBILITY - U. S. Senators John Kerry ( D- MA) and John McCain ( R- AZ) introduced the Voting Accessibility for the Elderly and Handicapped Act ( VAEHA) Amendments the week of March 1st. Senate Bill S. 511 will amend the VAEHA to ensure the equal right of individuals with disabilities to vote. “ Despite the intention of a voter accessibility law passed in 1984, many individuals with physical challenges are literally left outside the polling place, unable to exercise their fundamental right to vote without embarrassing themselves or relying on others to cast their ballot for them,” said Senator Kerry. “ As abysmally low as voter turnout is for the population as a whole, it is estimated that the rate of voter participation by persons with disabilities is even lower - as much as 15- 20 percent according to some surveys. Among the reasons for this gap is that polling places are not accessible to people with physical disabilities.” The VAEHA requires polling places to be physically accessible to both older voters and voters with disabilities. ( See http:// thomas. loc. gov/ cgi- bin/ bdquery/ D? d106: 33:./ temp/~ bdj3Xo::|/ bss/ d106query. html)
A report of the National Voter Independence Project ( NVIP) recounts the findings of a survey conducted by persons with disabilities from throughout the country during the 1998 Congressional elections. During the November election, persons with disabilities across America were asked to assist a coalition of disabilities rights groups by participating in the project. Participants were asked to report on their experience when they went to cast their ballots at their local polling place, and to complete a short NVIP survey to assess whether the entire voting process was accessible to persons with various disabilities. The NVIP survey was completed by 377 persons with disabilities representing forty states, the District of Columbia and one territory. Some of the results revealed by the survey:
· nearly half of the respondents ( 47%) reported difficulties in finding an accessible path to the voting area, with 11% indicating that a person using a wheelchair would only be able to get to the voting area if he/ she agreed to be carried into the building;
· the majority of polling places ( 52%) did not provide a voting booth appropriately sized for persons with disabilities;
· 81% of the polling places surveyed did not have ballots available in alternative formats, and persons who were blind or visually impaired had to rely on someone else to mark their ballot for them. Further, 12% of the responses reported that ballots in alternative formats are available only if requested in advance.
“ In summary,” the report concludes, “ it is clear that some progress has been made from a time when persons with disabilities were routinely excluded from being able to access the polling place. However, much work remains to be done before persons with disabilities can be considered to have equal access to the electoral process.”
WORK INCENTIVES IMPROVEMENT ACT ON COURSE - The Senate Finance Committee “ marked up” and voted for S. 331, the Work Incentives Improvement Act of 1999 on March 4, 1999. ( See “ ADA News” No. 59, 1/ 15/ 99, ADA News No. 61 - 22- March 15, 1999
http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 59. htm) The bill is intended, in part, to provide health care and employment preparation and placement services for individuals with disabilities and reduce dependency on cash assistance. More information is available on the Committee’s website at http:// www. senate. gov/~ finance/ fin- leg. htm/; the WIIA can be found at http:// thomas. loc. gov/ cgi- bin/ query.
NCD RELEASES PROGRESS REPORT ON DISABILITY POLICY - The National Council on Disability has released its 1998 “ National Disability Policy: A Progress Report.” The report states that the country continues to move forward in expanding opportunities and inclusion for Americans with disabilities, but the pace is slow. The report reviews federal policy activities, noting progress where it has occurred, and makes further recommendations to the President and Congress where necessary. Visit NCD's Web page ( http:// www. ncd. gov) to obtain a copy of the report, or call 202- 272- 2004 or 202- 272- 2074 ( TTY).
U. S. SUPREME COURT UPDATE - On March 3, 1999, in a 7- 2 vote, the U. S. Supreme Court ruled that public school districts must pay for professional nurses to accompany some students with disabilities under the Individuals with Disabilities Education Act ( IDEA). ( The IDEA authorizes federal financial assistance to states that agree to provide such children with special education and “ related services.”) In Cedar Rapids Community School District v. Garret F., the High Court affirmed that the Cedar Rapids Community School District in Iowa must pay the at- school nursing costs of a wheelchair- bound high school student. Garrett Frey, a sophomore, was paralyzed from the neck down in a motorcycle accident when he was 4 years old. He uses a motorized wheelchair to negotiate school corridors, but needs the assistance of a nurse to maintain his ventilator and periodically clear his air passages. School officials argued that Garrett's care was so involved and expensive that it should be considered medical treatment, not required under the IDEA. The Supreme Court decision affirmed a lower court ruling that it was not, reasoning that the phrase “ related services” used in the act broadly encompasses those supportive services necessary to assist a child with a disability to benefit from special education. Justice John Paul Stevens wrote in the Court's opinion, “ The district must fund such related services to help guarantee that students like Garret are integrated into the public schools.” Justices Clarence Thomas and Anthony Kennedy dissented from the majority. The Court will hear six other cases this term that could have a profound impact on the Americans with Disabilities Act ( ADA) and people with disabilities. Cedar Rapids Community School District v. Garret F., USSCt, No. 96— 1793, 3/ 3/ 99 ( http:// supct. law. cornell. edu/ supct/ html/ 96- 1793. ZO. html).
Disability advocates are nervously examining the recent U. S. Supreme Court ruling in a college volleyball dispute that shelters hundreds of associations receiving indirect federal aid from laws barring discrimination by race, age, sex or disability. By a 9- 0 vote, the justices agreed with the ADA News No. 61 - 23- March 15, 1999
National Collegiate Athletic Association that it isn't covered by the anti- bias law known as Title IX just because the association collects dues from 1,200 member schools that get federal money. “ Dues payments, from recipients of federal funds, we hold, do not suffice to render the dues recipient subject to Title IX,” Justice Ruth Bader Ginsburg wrote for the Court. Justice Ginsburg listed other anti- discrimination laws, including the federal Rehabilitation Act, in a footnote and said pointedly that their scope “ is defined in nearly identical terms.” The Supreme Court returned the case to the lower court to see if NCAA member schools made an illegal end run around Title IX by ceding to the NCAA their duty to set non- discriminatory sports rules. National Collegiate Athletic Assn. v. Smith, USSCt, No. 98- 84, 2/ 23/ 99 ( http:// supct. law. cornell. edu/ supct/ html/ 98- 84. ZO. html).
On Wednesday, February 24th, the U. S. Supreme Court heard arguments in the case Cleveland v. Policy Management Systems. The case concerns the complex and at times conflicting relationship between two federal laws dealing with disabilities that limit people's opportunities to earn a living. ( See “ ADA News” No. 57, 11/ 15/ 98, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 57. htm) Under the Social Security Act, people who are totally disabled receive benefits to replace lost income. Under the ADA, employers are obliged to offer the “ reasonable accommodations” necessary to enable people with disabilities to stay on the job. Failure to make such an accommodation for a “ qualified” person - someone who could benefit from it - amounts to illegal discrimination. The question for the Court is whether someone who has applied for, or received, Social Security disability benefits essentially forfeits the right to sue an employer for disability discrimination. Matthew D. Roberts, an assistant solicitor general arguing for Cleveland, said that because the concept of disability meant different things under the two laws, the laws were not mutually exclusive and it was not as illogical as it might appear for a person to turn to both of them. Justice Antonin Scalia responded that it was “ extraordinary that we have a law here that requires employers to make accommodations, and yet [ the Social Security Administration] is giving away money to people who are entitled to those accommodations and so are presumably employable.” A decision is expected later this year.
NEW EEOC GUIDANCE - On March 1, 1999, the U. S. Equal Employment Opportunity Commission ( EEOC) released a comprehensive policy guidance, entitled “ Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act ( ADA),” that addresses the duty of employers to provide reasonable accommodations to applicants and employees with disabilities under Title I of ADA. The free guidance may be obtained through EEOC's publications distribution center at 1- 800- 669- 3362 or 1- 800- 800- 3302 ( TTY). It is also available at the EEOC website ( http:// www. eeoc. gov).
THIRD CIRCUIT REJECTS PERCEPTION OF OBESITY DISABILITY CLAIM - The U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) has affirmed a trial ADA News No. 61 - 24- March 15, 1999
court’s rejection of a woman’s claim that she was discriminated against by her employer because it perceived that her obesity was a disability. The appellant was fired by the Mental Health Association of Southeastern Pennsylvania (" MHASP") and filed a discrimination complaint with the Pennsylvania Human Relations Commission which, in turn, lodged it with the EEOC. The PHRC notified the appellant that it had found “ no cause” in its investigation of her complaint. She then sued under the ADA, claiming harassment, disparate treatment and failure to accommodate. The District Court granted summary judgment for MHASP on these claims and denied a motion to amend her complaint to add a discrimination claim based on her obesity as a perceived disability. In affirming the trial court decision, the Third Circuit ruled, " We have not recognized a cause of action against an employer who discriminates against an employee because it perceives the employee as disabled by obesity." The Court found no indication that MHASP perceived her obesity as substantially limiting her ability to work or any other major life activities. Walton v. Mental Health Association of Southeastern Pennsylvania, CA3, No. 97- 2000, 2/ 23/ 99 ( ftp:// ftp. vcilp. org/ pub/ law/ Fed- Ct/ Circuit/ 3d/ 99a2072p. asc).
KANSAS LAW DOES NOT REQUIRE ACCESSIBILITY ENFORCEMENT - The Kansas Supreme Court has decided that state law does not require that public accommodations and commercial facilities built before the ADA entirely with private funds be accessible under Title III of the ADA. Link, Inc. v. City of Hays, 1999 WL 22975 ( http:// www. westdoc. com/ cgi- wl/ find? ftype= TN& id= 1999036037).
NINTH CIRCUIT SUPPORTS UNIVERSITY POSITION - The U. S. Court of Appeals for the Ninth Circuit ( WA, OR, CA, MT, ID, NV, AZ, AK, HI) has ruled that a medical school student who flunked out of UC- Davis Medical School even after securing several accommodations to help with a reading disability does not deserve another chance. Siding with the University of California, the unanimous three- judge panel held that the student’s failing grades proved she wasn't an otherwise qualified student with a disability. “ The Supreme Court has made clear that an educational institution is not required to make fundamental or substantial modifications to its program or standard; it need only make reasonable ones,” the Court stated. In September, the U. S. Court of Appeals for the Second Circuit ( NY, VT, CT) ruled that a New York state bar applicant with learning disabilities was entitled to special accommodations. ( See “ ADA News” No. 56, 10/ 15/ 98, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 56. htm) In the California case, the medical school argued it had offered the student all the accommodations that it normally offers learning- disabled students. The decision hands schools greater leeway to refuse accommodations without violating the ADA. Zukle v. The Regents of the University of California, CA9, No. 97- 16708, 2/ 23/ 99 ( http:// www. vcilp. org/ Fed- Ct/ Circuit/ 9th/ opinions/ 9716708. htm).
STATE HAS IMMUNITY FOR PARKING FEE - The U. S. Court of Appeals for the Fourth Circuit ( WV, VA, MD, NC, SC), in a case involving a challenge to North ADA News No. 61 - 25- March 15, 1999
Carolina’s ability to assess a $ 5 fee for the issuance of “ handicapped parking placards,” has found that in passing the ADA, Congress exceeded its powers under Section 5 of the Fourteenth Amendment, and thus Congress could not abrogate the state’s sovereign immunity under the Eleventh Amendment. The Court held that ADA regulations prohibiting public entities from charging a fee to cover the costs of accessibility programs designed to assist people with disabilities did not lie within the remedial scope of Congress' enforcement power under the Fourteenth Amendment's equal protection clause. In addition, the Court found that, by imposing a ban on all surcharges, the ADA regulations “ attempt to create a positive entitlement to a free handicapped parking space,” thereby impermissibly attempting to “ establish a new suspect or quasi- suspect equal protection classification.” Brown v. North Carolina Division of Motor Vehicles, CA4, No. 97- 2784, 2/ 12/ 99 ( http:// www. law. emory. edu/ 4circuit/ feb99/ 972784. p. html).
OLMSTEAD ACTIONS CONTINUE - About fifty members of American Disabled for Attendant Programs Today ( ADAPT) demonstrated against the National Governors' Association on the sidewalk in front of the Marriott Hotel in Washington, D. C. on Saturday, February 20th. The group was protesting the Association's position on the Olmstead case, currently before the Supreme Court. ( See “ ADA News” No. 60, 2/ 15/ 99, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 60. htm) “ The Governors have formally opposed our ADA rights to receive services in the most integrated settings, not in institutions,” stated Justin Dart, group spokesman. “ ADAPT leaders have already met with the Chairpersons of the Governors Association, but without receiving a firm commitment that the group will support the ADA in the Olmstead case.”
ICE DANCING NATIONAL CHAMP - In the U. S. Figure Skating Championships held last month in Salt Lake City, Utah, the silver medal in the ice dancing competition was captured by the pair of Eve Chalom and Mathew Gates. The 21- year old Chalom has been deaf since the age of four. For information on the pair and their accomplishments, see the USFSA website at http:// www. usfsa. org/ uschamp99/ roster/ chalgate. html/.
SANDUSKY WOMAN FOUND NOT GUILTY - After deliberating for about four hours, a municipal court jury in Sandusky, Ohio found Kelly Dillery not guilty of child endangerment for driving her motorized wheelchair in the street with her daughter strapped onto her lap. Dillery, who has muscular dystrophy, did so when she could not negotiate the city’s sidewalks because of their condition and lack of curbcuts. She was facing a possible six months in jail and a $ 1,000 fine on the misdemeanor charge. Dillery said she hoped this case will help others respect people with disabilities. Disability rights activists say her case shows the barriers they face everyday. Dillery was convicted in January of being a pedestrian in the street after using her wheelchair in a street on a different occasion, and ordered to pay $ 100 in fines and court costs. ( See “ ADA News” No. 60, 2/ 15/ 99, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 60. htm) Dillery said she will ADA News No. 61 - 26- March 15, 1999
continue to ride in the streets when the sidewalks are not accessible, adding " but in the safest possible manner." ( http:// www. sanduskyregister. com/ cgi- bin/ LiveIQue. acgi$ sch= local newsdaily? loc)
NO ADA TRIAL FOR “ INSUBORDINATE” CLERK - “[ T] he ADA confers no right to be rude,” wrote Judge Roger L. Wollman for the 9- 4 majority of the full U. S. Court of Appeals for the Eighth Circuit. The Court thus denied a trial under the ADA to a former clerk fired for insubordination, reversing the decision of a panel of the Court to allow the lawsuit to proceed. ( See “ ADA News” No. 53, 7/ 15/ 98, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 53. htm) The clerk, who is deaf, was fired when he yelled “ you’re selfish, you’re selfish” at his boss after she denied the clerk’s multiple requests for a TDD as an accommodation. Although the clerk’s requests “ were protected communications,” insulting his employer “ and indulging in an angry outburst in the presence of co- workers … were certainly not,” the Court explained. According to the Court, he could not point to any conduct or statements by his employers that would show he was actually fired because of discrimination on the basis of his hearing impairment, or that would indicate that hearing employees were disciplined less severely for insubordination. Kiel v. Select Artificials, Inc., CA8, No. 97- 2433 ( The decision of the full Court had not been posted to the Eighth Circuit website - http:// ls. wustl. edu/ 8th. cir/ cindex. html - at the time of this edition.).
CONDUCT WAS LEGITIMATE BASIS FOR DISCHARGE - A professor at East Texas State University, diagnosed with obsessive compulsive personality disorder, was discharged for unsatisfactory performance, including refusal to attend staff meetings, participate in mandatory faculty reviews, and harassing his colleagues. While the professor’s expert witnesses testified as to the symptoms of his condition, none testified that he had a disability. The trial jury found that the professor was not a qualified individual with a disability under the ADA, and he appealed. The U. S. Court of Appeals for the Fifth Circuit ( TX, LA, MS) affirmed, finding that the professor failed to show that he had a disability, or that he was discharged because of a perception of disability. “ All the evidence indicates that the university dismissed him because of his work performance and lack of collegiality. In the absence of any evidence that the university was concerned specifically about [ his] being mentally ill … then the perception of him as mentally ill could not have been a motivating factor in his dismissal,” stated the Court’s opinion. “[ W] here an employee engages in conduct that is legitimately a basis for dismissal, and the employer believes that the employee's conduct is symptomatic of disability, the employer may fire the employee on the basis of the conduct itself, as long as the collateral assessment of disability plays no role in the decision to dismiss. … [ A] n employer need not provide reasonable accommodation to an employee who does not suffer from a substantially limiting impairment merely because the employer thinks the employee has such an impairment.” Newberry v. East Texas State University, 161 F. 3d 276 ( 5th Cir. 1998). INMATE CONTACT IS ESSENTIAL TO CORRECTIONS OFFICER POSITION - The U. S. Court of Appeals for the Ninth Circuit has affirmed a judgment in favor of the King County Washington Department of Adult Detention in the discharge of four corrections officers. The officers had various disabilities that disqualified them from having contact with inmates. The officers were accommodated for as long as ten years by being assigned exclusively to the facility’s control room. Inmate contact was required of officers assigned to the control room only in emergencies, but direct inmate contact was still an essential function of the corrections officer position included in the position’s job description. The Court agreed that the officers were not qualified for the positions. “ No accommodation would allow them to have direct inmate contact, an essential function of the corrections officer position,” the Court’s opinion reads. “ The record indicates that both the employer and the written job description identify inmate contact as a fundamental duty. Although corrections officers assigned to the control room are not expected to have inmate contact on a regular basis, plaintiffs acknowledged that some incidental contact is inevitable. Further, their ability to restrain inmates during an emergency is critical to jail security. In fact, several corrections officers testified that jail safety is currently jeopardized by appellants' inability to respond to emergencies. Finally, the relevant collective bargaining agreement indicates that King County corrections officers are expected to rotate among several positions, most of which require inmate contact.” Kees v. Wallenstein, CA9, No. 97- 35559, 12/ 25/ 98.
EXCESSIVELY ABSENT EMPLOYEE NOT QUALIFIED - The U. S. Court of Appeals for the Seventh Circuit has held that a former account support representative who, because of severe depression and anxiety, had used 43 weeks of paid sick leave in one year, nineteen weeks the following year, and another nine weeks after that, is not a qualified individual under the ADA, even though she possessed the necessary skills for her job. The employee conceded that regular attendance, although not explicitly listed in her job description, was an implied essential function of her job. According to the Court, nothing in the record suggested that her attendance in the future would be different from the past, and her continuing request for an “ unpredictable” amount of leave time as an ongoing accommodation contradicted her assertion that she would be able to attend work regularly in future. “ An employee who does not come to work cannot perform the essential functions of his job,” stated the Court. Corder v. Lucent Technologies, Inc., CA7, Nos. 97- 3618 & 98- 2722, 10/ 22/ 98 ( http:// www. kentlaw. edu/ 7circuit/ 1998/ dec/ 97- 3618. html).
Thanks to Tom Au for his assistance in preparing this edition of the “ ADA News.” - Ed.
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" News Reviews to Peruse"
Number 62 April 15, 1999
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.) ( bair. patrick@ dep. state. pa. us). This publication can also be located at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP Intranet website.
PRESIDENT DECLARES APRIL CANCER CONTROL MONTH - By proclamation of April 1, 1999, President Clinton declared April 1999 as Cancer Control Month. “ Each year for more than half a century, our Nation has dedicated the month of April to reaffirming our commitment to developing more effective prevention, detection, and treatment of cancer and to recognizing the progress that we have made in fighting this devastating disease. Today we are reaping the rewards of our long- standing efforts to combat cancer as researchers make remarkable progress virtually every day. … Although these and other recent advances are encouraging, we must not be complacent. The occurrence of cancer is still too common, and the suffering it causes is incalculable. As we stand on the threshold of a new millennium, let us draw strength from the successes of the past and reaffirm our determination to treat, prevent, and ultimately eradicate cancer.” ( Excerpted from the Presidential Proclamation).
JUSTICE DEPARTMENT SETTLEMENT - The owner of a commercial real estate corporation that refused to lease space to a nonprofit organization that serves people with disabilities will no longer discriminate against people with disabilities, and will take corrective action to ensure that it doesn't happen in the future, under an agreement reached with the U. S. Department of ADA News No. 62 - 29- April 15, 1999
Justice. The out- of- court agreement resolved allegations that the Canadian- based TrizecHahn Corporation violated the ADA by not leasing office property to the Endependence Center, a non- profit corporation. TrizecHahn owns, manages and develops retail and office properties throughout the United States, including Rosslyn, Virginia. “ Leasing agents who engage in this kind of conduct should be on notice that the Justice Department will vigorously enforce the laws that protect businesses and organizations from this kind of discrimination. We are pleased that TrizecHahn took quick action to resolve the matters brought in this case,” said Bill Lann Lee, Acting Assistant Attorney General for Civil Rights.
DC JOB FAIR IN APRIL - A job fair is being held in Washington, DC on the 24th of April, hosted by the President's Committee on Employment of People with Disabilities ( PCEPD). Other job fairs are being held in Chicago on June 18th, in Boston on September 18th, and in San Diego on January 20, 2000. Go to the Fox Productions Inc. website at www. foxprodinc. com for registration and more information.
UNFRIENDLY ATMOSPHERE FOR PWD - A report recently released by the National Council on Disability finds that air travelers with disabilities are often mistreated by airline personnel and denied special accommodations including access to wheelchairs and escorts in violation of a 1986 law, the Air Carrier Access Act. The report followed an 18- month review by the NCD of the treatment of air travelers with disabilities, a review that revealed serious problems. “ The negative experiences of disabled travelers go beyond the typical hassles all air travelers encounter,” said Marca Bristo, chairwoman of the NCD. " When you are dropped or mishandled by poorly trained staff who treat you like an inconvenient piece of luggage, when you can't get critical information because it is not in an accessible format, you are left with the feeling that you don't count, that your dignity as a human being has been violated," she said. A press release and the entire report can be found on the NCD’s website at http:// www. ncd. gov/ news/ r99- 266. html.
NCD ANNUAL REPORT AVAILABLE - Also available at the NCD’s website is its recently- released Annual Report to the President and Congress for Fiscal Year 1998. The report chronicles NCD's activities and accomplishments for the past fiscal year. See http:// www. ncd. gov/ publications/ fy98report. html.
PREGNANT FIREFIGHTER HAS NO CLAIM UNDER ADA - A Topeka, Kansas firefighter who was transferred against her wishes to a light- duty position after she informed her employer that she was pregnant does not have a claim under the ADA for disability discrimination, according to the U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, KS, NM, OK). The firefighter was transferred even though her obstetrician had cleared her to work based upon internal policies and the collective bargaining agreement with the union, according to the employer. The Appellate Court found that, where the claimant conceded that her pregnancy did not impair a major life activity or impair her ability ADA News No. 62 - 30- April 15, 1999
to work, pregnancy is not a disability under the ADA. The Court also dismissed her argument that her employer “ perceived” her pregnancy as a disability. Richards v. City of Topeka, CA10, No. 97- 3339, 3/ 24/ 99 ( http:// www. kscourts. org/ ca10/ cases/ 1999/ 03/ 97- 3339. htm).
WORK INCENTIVES IMPROVEMENT ACT OF 1999 MOVES FORWARD - The Work Incentives Improvement Act of 1999 ( S. 331), also known as the Jeffords- Kennedy- Roth- Moynihan work incentives bill, continues to gain momentum in the U. S. Senate. At present, there are 69 co- sponsors of the bill, 45 Democrats and 24 Republicans. If enacted, the legislation would amend existing eligibility rules for Social Security Insurance and Social Security Disability Insurance, making it easier for people with disabilities to re- enter the workforce without sacrificing their Medicaid coverage. It would create a state option to allow beneficiaries to extend their health coverage when they return to work. The bill has two companion bills in the House of Representatives: H. R. 1091 and H. R. 1180. These bills were referred to the House Committee on Commerce and the House Committee on Ways and Means. ( See last month’s “ ADA News” for more information on WIIA.)
KEVORKIAN CONVICTED - On March 26, Dr. Jack Kevorkian was found guilty of murder for assisting in the death of a person in Detroit, Michigan, who had Lou Gehrig’s disease. The well- known Kevorkian says he has assisted more than 130 people in committing suicide. His conviction was welcomed by many disability- rights advocates, who saw his defense of assisted suicide as promoting the euthanization of people with disabilities. On April 12, the Detroit court sentenced the 70- year- old Kevorkian to 10 to 25 years in prison.
MITIGATING MEASURES - Following the rule it established in Matczak v. Frankford Candy and Chocolate Co. ( see “ ADA News” No. 47, 1/ 15/ 98, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 47. htm), the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) found that a lower court erred when it dismissed the ADA case of a woman with bipolar disorder because the woman appeared to be completely recovered after taking medication. The Appellate Court found the lower court had employed the wrong test when judging the woman’s disability since her mental condition is a chronic one that can be significantly abated with medication, but not cured. “ Disabilities should be evaluated based on the plaintiff's unmedicated state,” wrote U. S. Circuit Judge Robert E. Cowen for a unanimous three- judge panel. The question whether so- called mitigating measures should be considered when judging a person’s disability status is currently pending before the U. S. Supreme Court, which, it is anticipated, will resolve the current split in opinion between the circuits. ( See “ ADA News” No. 59, 1/ 15/ 99, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 59. htm) Taylor v. Phoenixville School District, CA3, No. 98- 1273, 4/ 5/ 99 ( http:// www. vcilp. org/ Fed- Ct/ Circuit/ 3d/ April99. html).
ADA News No. 62 - 31- April 15, 1999
CAMDEN CENTRE ACCESSIBILITY CHALLENGED - The Third Circuit Court has reinstated the Title III claim of a disabled veteran against the Sony- Blockbuster Waterfront Entertainment Centre in Camden, New Jersey. The two claims regarding wheelchair spectators were wrongly dismissed by a federal judge, according to the Appellate Court. The veteran, who was joined in his lawsuit by the groups Advocates for Disabled Americans and Paralyzed Veterans of America, sued the center after attending a reggae concert in 1995, where he said he was denied access to the lawn area and could not see over the heads of standing spectators. The Third Circuit panel reinstated the lawn claim, stating that “ the only way the E- Centre can justify its failure to provide access to the lawn is by showing structural impracticability.” Caruso v. Blockbuster Sony, CA3, No. 97- 5693,97- 5764, 4/ 6/ 99 ( http:// www. vcilp. org/ Fed- Ct/ Circuit/ 3d/ April99. html).
PEOPLE WITH DISABILITIES GAINING GREATER INTERNET ACCESS - “ The Internet has become a powerful tool in improving the lives of people with disabilities. People with disabilities that range from blindness to quadriplegia to learning disabilities have a new way to connect to the outside world, work online, and participate in Web communities, e- commerce, and research. Many of these new technologies will also aid people with less severe physical difficulties, such as aging baby boomers whose eyesight isn't what it used to be. But with the increasingly complicated navigation of many Web pages, as well as the growing prevalence of graphics and multimedia, advocates for people with disabilities warn that the barriers may be rising again.” For the complete story, see IDG. net at http:// www. idg. net/ gomail. cgi? id= 9- 127415/ .
EEOC BUDGET INCREASE ASKED - The Administration has requested an increase of $ 33 million, or approximately 11.8 percent from the current budget, for the Equal Employment Opportunity Commission for fiscal year 2000. The boost would raise the agency’s budget to $ 312 million. A large portion of the increase is slotted for the Office of Federal Contract Compliance.
NO ADA VIOLATION IN FIRING FROM LEAVE - The U. S. District Court for the Eastern District of Pennsylvania has found that a senior programmer analyst with multiple sclerosis, who was fired after exhausting his six- month entitlement to medical leave, was not discriminated against by his employer. The programmer claimed he was fired in retaliation for an earlier EEOC claim. The court held that the employer had not applied its medical leave policy - which provided for an employee’s discharge after six months - differently from any other similarly- situated employee. Shaner v. Synthes, 1998 U. S. Dist. LEXIS 2009 ( EDPa. 12/ 11/ 98).
DAIMLER/ CHRYSLER TO PAY REJECTED JOB APPLICANT - DaimlerChrysler Corporation has agreed to pay $ 75,000 to settle a claim against it brought by an applicant whose job offer was rescinded after a mandatory medical examination. The applicant for an assembly line position was rejected when the examination reported that he had a slight limp as a result of a childhood ADA News No. 62 - 32- April 15, 1999
hip injury. An independent medical exam determined that the applicant could perform the essential functions of the assembly line job. In addition to paying the $ 75,000, DaimlerChrysler agreed not to use its medical examination to “ automatically” exclude applicants with physical restrictions “ without first conducting an individualized assessment as to that individual’s
ability.” FAILURE TO REQUEST ACCOMMODATION FATAL TO ADA CLAIM - A store cashier who was informed she would be required to bend and lift heavy objects, and who quit her job instead of requesting an accommodation for her arthritis, is barred from suing her former employer, according to the U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL). The initial burden of requesting a reasonable accommodation is on the employee, said the Court. Gaston v. Bellingrath Gardens and Home Inc., CA11, No. 98- 6637, 2/ 12/ 99 ( http:// www. law. emory. edu/ 11circuit/ feb99/ 98- 6637. man. html).
INABILITY TO WORK “ LONG HOURS” NOT A DISABILITY - The ADA claim of a human resources manager, who was fired after she informed her employer that a diagnosis of an enlarged heart would prevent her from continuing her work schedule of 50- 70 hours per week, was dismissed by the U. S. Court of Appeals for the First Circuit ( ME, NH, MA, RI, PR). The Court found that the inability to work long hours is not a “ substantial limitation” on the major life activity of working, since “[ t] here are vast employment opportunities which require only 40- hour workweeks.” Tardie v. Rehabilitation Hospital of Rhode Island, CA1, No. 98- 1748, 2/ 24/ 99 ( http:// www. law. emory. edu/ 1circuit/ feb99/ 98- 1748.01a. html).
In apparent agreement is the decision of the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR), which recently affirmed the discharge of a payroll and risk management director with non- insulin dependent diabetes who informed her supervisors that she could no longer work 70 to 80 hours per week, as she had been. The director resigned, then tried to withdraw her resignation, asking to be accommodated with a 40- to 50- hour work week. The employer terminated her because of her resignation and poor performance. The Court affirmed summary judgment for the employer, finding that the employee was not substantially limited in working or any other major life activity. “ We find it hard to say that being limited to a 40- to 50- hour work week substantially limits one’s ability to work,” observed the Court. Berg v. Norand Corp., CA8, No. 98- 1232, 3/ 5/ 99 ( http:// ls. wustl. edu/ cgi- bin/ 8th/ release. pl).
APPLICATION VIOLATES ADA - The EEOC is suing Wal- Mart over its use of the “ matrix” employment questionnaire, which the agency claims violates the ADA because it asks about an applicant’s disabilities before a conditional offer of employment would be made. Wal- Mart claims that the questionnaire is being used nationally. The EEOC is seeking a permanent injunction against the use of the questionnaire. EEOC v. Wal- Mart Corp., EDCalif., No. Civ. S- 99- 0414, 3/ 4/ 99. FEDERAL GOVERNMENT HELPS IN SEARCH FOR CANDIDATES - The 1999 Workforce Recruitment Program database, a free CD- ROM provided on request by the PCEPD, contains profiles of more than 1000 job candidates with disabilities. The database is intended to assist businesses in the search for qualified candidates with disabilities. The candidates on the CD, most of whom are college students, are pre- screened in face- to- face interviews. The profiles include a narrative of the candidate’s interests and abilities.
GIRL SCOUT COUNCIL SUED - The Adirondack Girl Scout Council has been sued by the parents of a girl who tests positive for HIV who was allegedly refused admission into several of the Council’s troops. Donovan v. Adirondack Girl Scout Council, Inc., NY Human Rights Div., No. 9K- P- D- 2400722, 3/ 10/ 99.
ANNOTATIONS:
1. “ Computers Open Doors for Disabled,” by Nancy Weil
2. “ The Disabilities Act Is Creating a Better Society,” an editorial by Albert R. Hunt of The Wall Street Journal
1. “ Computers Open Doors for Disabled,” by Nancy Weil
The advent of the graphical user interface ( GUI) was widely hailed for its positive effect on the computing industry. But for people who are blind or visually impaired, the new approach had a tremendous downside.
For example, many of them lost their jobs when text- based DOS gave way to the rise of Microsoft Corp.' s Windows operating system. The technological " advance" that brought graphics to the desktop was anything but a move forward for the estimated 145 million people worldwide who are blind or visually impaired and were doing well enough using DOS. The commonly cited GUI example underscores a point frequently made by people with disabilities and their advocates.
" The disadvantages of disability in the workplace and in society arise from decisions to design exclusively for individuals with a standard mix of cognitive, sensory and physical characteristics," Katherine Seelman, director of the National Institute on Disability and Rehabilitation Research, said two years ago, applauding the World Wide Web Consortium ( W3C) for launching its Web Accessibility Initiative.
Changes in the traditional approach to design may seem woefully slow for people with disabilities -- some 49 million in the U. S. alone. But the next couple of years holds great promise, say those overseeing accessibility issues and assistive technology ( AT) for major information technology
ADA News No. 62 - 33- April 15, 1999
ADA News No. 62 - 34- April 15, 1999
vendors, as well as advocates for the disabled.
" I'm thinking that, really, we may see some incremental improvements on some fronts [ this year]. But in 2000 and 2001, we'll really see some changes," said Curtis Chong, director of technology at the National Federation for the Blind.
IBM's Home Page Reader software that enables Web browsers to talk to blind and sight- impaired users was released in U. S. English last month. The software was first released for Japanese and was developed with research by a blind IBM researcher in the company's Tokyo laboratory. Additional releases in other languages will be out this year.
The software interprets HTML and can speak to computer users to provide information in forms and tables, and give descriptions of graphics.
Dell Computer Corp. started a new service last month that allows deaf, hearing- impaired and speech- impaired users to communicate with company sales and customer service workers using a text telephone.
All users reap the benefits of software, hardware and other technologies " universally designed" with more than the so- called mainstream in mind, say industry observers, who also note the potential boon the emerging market could be for vendors. Consider the 1997 testimony of Steven Jacobs, a senior technology consultant at NCR Corp. before a U. S. House of Representatives subcommittee regarding just one such example of universal design:
" Text- to- speech technologies have other important business implications. For example, there is little difference between a person who is blind and a person who is illiterate, from the standpoint of not being able to read. Worldwide there are more than 1.1 billion consumers who are illiterate. This can be a real market limiter for companies wishing to market public access information systems on a global basis."
Top vendors - Dell, IBM, Microsoft Corp. and Sun Microsystems Inc. among them - have made AT a priority. The W3C initiative also pushed accessibility issues into the forefront.
Microsoft Chairman Bill Gates emphasized his company's commitment to accessibility in a speech last year and tapped Greg Lowney as director of accessibility. Microsoft apparently realizes that by not considering the needs of blind and site- impaired computer users in particular, its introduction of the graphics- oriented Windows had a major negative effect on the lives of many.
The edict from Gates means that Microsoft addresses accessibility issues " in pretty much everything we're doing," Lowney said.
" We realize that some groups are being hit hardest now," Lowney said of the need for more AT on the market. " Historically, people who are blind have the greatest productivity and employability because of computer technologies, and then they have the most sudden setbacks [ because of technological changes]."
No one knows exactly how many blind or sight- impaired people lost their jobs when Windows was introduced and became the dominant operating system. But Lowney said that anecdotally, Microsoft was hearing from various employment agencies and others through at least one call weekly that people were losing jobs or were in danger of losing them because they could no longer operate computers.
The Americans with Disabilities Act of 1990 established that people with disabilities must be accommodated with accessibility to jobs, government services, public places and transportation. However, without appropriate products available to help them work, such efforts would be stymied.
Microsoft's goal is to release at or near the launch dates of its mainstream major products versions of its software that are accessible to people with disabilities. IBM is doing the same and has worked closely with Sun for the past two years to ensure that Java is a technology accessible to people with disabilities, said Paul Luther, IBM global marketing programs manager for the company's Special Needs Systems.
" In the coming years, with more and more manufacturers going to a Web- based look and feel, it's really crucial that for people with disabilities we continue to provide solutions," Luther said. " The need will probably be even stronger or as strong."
As Lowney noted, people with disabilities, and blind people in particular, tend to be quick to embrace new technologies that help them with work and life. The first computer systems are a case in point, he said, with blind users among the " early adopters of that technology."
" The computer is so wonderfully adaptive," Lowney said. " You can add features to it to compensate for a wide variety of abilities."
2. “ The Disabilities Act Is Creating a Better Society,” by Albert R. Hunt, The Wall Street Journal, 3/ 11/ 99
“ The Americans With Disabilities Act is not sensitive to the needs of our businesses - large and small - and will subsequently have a negative impact on our judicial system and on our nation's productivity as a whole."
Rep. Tom DeLay ( R., Texas), February 22, 1990
ADA News No. 62 - 35- April 15, 1999
ADA News No. 62 - 36- April 15, 1999
As they did when the civil- rights bills passed a generation earlier, the political right warned that the Americans With Disabilities Act would undermine the American economy, produce a litigious nightmare and hurt the cause of those it purported to help, the disabled.
The legislation passed decisively but not without a huge struggle and vehement opposition. The three current GOP House leaders - Dennis Hastert, Dick Armey and Tom DeLay - all voted against it. Messrs. Armey and DeLay were apocalyptic in their prophecies; as recently as 1995, Mr. Armey still was proclaiming the ADA a " disaster" that benefitted " gold diggers" who file frivolous suits.
It wasn't just conservatives complaining. Some well- heeled Democratic contributors, like real- estate developers, threatened to cut off financial contributions to prominent supporters of the ADA .
These doomsayers were almost totally wrong. In its seventh year, the ADA, which prohibits bias against the disabled in employment and public accommodations, has won widespread acceptance from the public and most businesses, and has significantly elevated the awareness of and respect for the millions of Americans with disabilities.
" We in the disabled community used to be patronized; others believed they would take care of us," says Tony Coelho, who has epilepsy, and who, as a member of Congress in 1990, was the driving force behind the passage of the legislation. " As a result of the ADA , we have come to terms with doing things for ourselves."
He derides the doomsday predictions of his former colleagues. " I would challenge them to name one business that has gone under because of ADA."
Some critics, even reputable ones, still claim the law is backfiring. One study by two prominent Massachusetts Institute of Technology economists claims that the costs have been so high to employers that it has resulted in hiring fewer, not more, disabled Americans.
But rival studies by the Census Bureau, the President's Commission on Disabilities and by Peter Blanck, a University of Iowa law- school professor who specializes in this field, come to a contrary conclusion. Anecdotal evidence suggests they are right.
Professor Blanck notes that most firms have found that ADA is much easier to conform to than initially suspected. He studied Sears Roebuck, for example, and found that the average cost of conforming -- raising or lowering a desk, putting in a ramp, or altering a dress code -- was less than $ 50; another survey found that three- quarters of all changes cost under $ 100. And companies only have to conform to ADA ' s requirements if it won't cause an ADA News No. 62 - 37- April 15, 1999
undue expense or burden.
Companies such as Sears, Manpower Inc., Sprint and Hewlett Packard have been at the forefront of making changes and say the ADA has not only not caused economic hardship but is generating a more productive and profitable workforce.
There has been some frivolous litigation. For example, there are more than a handful of complaints, under the ADA umbrella, pertaining to unspecified back injuries.
But the notion that this law would produce a rash of legal actions that would intimidate or bankrupt businesses is demonstrably untrue. Almost 90% of the cases brought to the Equal Employment Opportunity Commission are thrown out. The American Bar Association recently did a survey that found that, of the cases that go to court, the defendants, usually businesses, win an astounding 98% of the time.
" There are people with legitimate issues like diabetes or epilepsy who are not able to make their claims," argues Robert Silverstein, director of the Center for the Study and Advancement of Disability Policy at George Washington University. " If anything, the courts are narrowing the law too much and throwing out cases that are legitimate."
Yet the most significant contribution of the ADA is that it clearly has changed the perception of the disabled. This is reflected in modern culture as well as the workforce and public accommodations. ( As the father of a child in a wheelchair -- hopefully only temporarily -- it is terrific to be able to go to movies, restaurants and ball games with minimal hassle; conversely, it is outrageous that in Washington, D. C., we can't see the movie " Shakespeare in Love" because the one theater in the city where it's showing is not wheelchair accessible.)
Moreover, as Tony Coelho notes, some of the changes caused by the ADA have benefitted more than the disabled. " Curb cuts are used by kids in rollerblades, delivery people and mothers with baby strollers. I use the volume controls at airports." Also, by raising awareness, the ADA has caused other institutions to reach out more for the disabled. Colleges and universities, for example, are making many more accommodations for physically impaired students or those with learning disabilities than they were a decade ago.
To be sure, the ADA has fallen short of its supporters most optimistic dreams; over half of disabled Americans still are unemployed, though sometimes that has more to do with health insurance or Social Security regulations.
But overall there are two compelling reasons that the ADA has been one of government's great successes this decade, one negative, the other positive. The negative reason is the simple fact that when the Republicans achieved a conservative majority in the Congress, there was absolutely no appetite to repeal the law that Messrs. DeLay and Armey insisted was so onerous; if the ADA had failed in the marketplace, surely there would have been a serious move to do something.
The other is what Professor Silverstein describes as a new paradigm based on a simple premise: " Disability, like race and gender, is a natural and normal part of the human experience that in no way diminishes a person's right to live a normal life and participate in mainstream activities."
As a society, we aren't there yet. But, because of the Americans With Disabilities Act, we're a lot closer than we were at the start of this ecade.
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" News Reviews to Peruse"
Number 63 May 15, 1999
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.)
ADA News No. 62 - 38- April 15, 1999
ADA News No. 63 - 39- May 15, 1999
( bair. patrick@ dep. state. pa. us). This publication can also be located at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP Intranet website.
MAY IS MENTAL HEALTH MONTH
WHITE HOUSE CONFERENCE ON MENTAL HEALTH - The White House is sponsoring a conference on mental health to take place in Washington on June 7, 1999. The purpose of the conference is to explore possible steps toward enhancing the lives of people living with mental disabilities, and to demonstrate a commitment to battling social stigma surrounding mental illnesses. The program is planned to include breakout sessions, a plenary session with remarks from the President, an interactive " town hall" meeting with Vice President and Mrs. Gore, and an " information fair." Invited will be the President and first lady, Vice President and Mrs. Gore, cabinet officials, members of Congress, parties interested in mental health issues ( consumers, advocates, providers, researchers, policy- makers, etc.), representatives from every state, and representatives of various aspects of American society ( e. g., business, education, local elected officials, civil rights groups). A live nationwide satellite broadcast is proposed.
TIPPER GORE SPEAKS OUT ON MENTAL HEALTH - With the White House Conference on Mental Health a month away, Tipper Gore has touched on her own experience with depression in an article that appeared in USA Today on May 7, 1999, “ Eliminate Outdated Attitudes on Mental Health.” “ In traveling around the country, I have met so many people who have been successfully treated for depression and so many more who are afraid to come forward,” says Gore. “ I hope after reading this fewer people will be afraid to get help.” Tipper Gore is the wife of Vice President Al Gore, a well- known child advocate, and actively involved with issues related to mental health and homelessness. Mrs. Gore currently serves as Mental Health Advisor to the President.
NORTH CAROLINA LICENSE SURCHARGE UPHELD - The U. S. Court of Appeals for the Fourth Circuit ( VA, WV, MD, NC, SC) has upheld a North Carolina surcharge of $ 5 for automobile license plates identifying the holder as a person with a disability, finding the Title 2 ADA regulation prohibiting such charges to be unconstitutional. The surcharge requirement was challenged by a number of North Carolina drivers with disabilities on the basis of the Title 2 regulation, which reads in part: “ A public entity may not place a surcharge on a particular individual with a disability … to cover the costs of measures such as the provision of auxiliary aids or program accessibility.” 28 CFR § 35.130( f)( http:// www. usdoj. gov/ crt/ ada/ reg2. html). The state counter- argued that the federal government’s attempt to prohibit imposition of such charges by a state violates a state’s sovereign immunity. The Court held that state sovereign immunity was not abrogated by the ADA. ( Note: Pennsylvania also charges a fee - of $ 7.50 - for specialty plates, including those for persons with disabilities. - Ed.) The case is Brown v. North Carolina Division of Motor Vehicles, CA4, No. 97- 2784, 2/ 12/ 99 ADA News No. 63 - 40- May 15, 1999
( http:// www. law. emory. edu/ 4circuit/ feb99/ 972784. p. html).
GOOD MOTIVATIONS NOT ALWAYS BEST - Even if a manager believes that an employee would benefit from some type of medical treatment, it is a good legal practice to resist the urge to tell the employee to seek treatment. This because of the possibility that the person could, based upon the manager’s well- intentioned recommendation, bring an ADA claim that the manager discriminated against the employee because the manager “ perceived or regarded” the employee to have a disability. Recall that the ADA does not require that a person actually have a disability as defined in the Act in order to have a claim under the Act; a person is also entitled to relief under the ADA where allegedly discriminatory treatment is based on a mistaken belief that the person has a covered disability. See 42 USC § 12102( 2)( c)( http:// www. eeoc. gov/ laws/ ada. html). So the next time a co- worker starts talking to the furniture, and it is interfering with his work, it might be better to refer him to SEAP than to suggest that he consult a psychiatrist.
NO TITLE II ACTION FOR CALIFORNIA PUBLIC EMPLOYEE - The U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU), in an opinion that deviates from several other circuits, has held that an Oregon public employee has no cause of action for alleged employment discrimination under Title II of the ADA. The Court held that Title I of the Act was intended by Congress to be the sole statutory remedy for employment- related grievances. The employee in question had failed to file charges under Title I with the EEOC in a timely fashion, and had thus resorted to bringing his claim under Title II, which provides for a longer filing period. The Court decided that Justice Department regulations interpreting the ADA to include employment within the ambit of Title II contravene “ unambiguous” language to the contrary found in the Act. Last year, the U. S. Circuit Court of Appeals for the Eleventh Circuit ( FL, AL, GA), in Bledsoe v. Palm Beach County Soil and Water Conservation District, found that Title II does cover employment disputes ( see “ ADA News” No. 50, 4/ 15/ 98, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 50. htm). The Ninth Circuit case is Zimmerman v. Oregon, CA9, No. 97- 36101, 3/ 18/ 99 ( http:// www. vcilp. org/ Fed- Ct/ Circuit/ 9th/ opinions/ 9736101. htm).
ADAAG TO BE REVISED - At its March meeting, the Access Board unanimously approved a rule to completely revise and update its ADA Accessibility Guidelines ( ADAAG). This will be the first comprehensive update of the guidelines since they were originally issued in July 1991. The Board adopted the complete contents of the proposed rule, which will be available for public comment.
NEW HARRIS POLL SHOWS STRONG SUPPORT - A Louis Harris and Associates survey released April 15th, commissioned by the National Organization on Disability, reveals strong and sustained public endorsement of national civil rights ADA News No. 63 - 41- May 15, 1999
protections for Americans with disabilities. Findings of the survey among 1,008 adult Americans include: a full two- thirds, or 67% of adult Americans have read or heard about the ADA; three- quarters ( 75%) of all adults think that the benefits to people with disabilities are worth the additional costs to governments and businesses; more than eight out of ten ( 83%) of all adults felt that creating opportunities for those with disabilities will decrease welfare rolls and increase employment opportunities while only one in eight ( 12%) feel it will be very expensive and not worth the extra cost for employers to hire more people with disabilities. The complete survey and results are available at the National Organization on Disability website www. nod. org.
AFSCME SETTLES ADA CLAIM - AFSCME Local 646, which represents Hawaii Department of Education employees, has settled an ADA case brought against it by the EEOC following a partial summary judgment holding that the Act applies to members seeking reasonable accommodation from a labor union. The suit was initiated by two members who were denied sign language interpreters for union meetings.
SUPERVISORY LIABILITY - Two federal courts have recently held that supervisors cannot be found individually liable under the disability laws. First, and most important to us, the U. S. District Court for the Eastern District of Pennsylvania denied a lawsuit under the Rehabilitation Act ( the precursor to the ADA) by an employee against an his manager. The court cited a “ growing consensus” that individual liability is not permitted under the ADA and, by extension, the Rehabilitation Act, because it is not permitted under Title VII. Fitzpatrick v. Pa. Dept. of Transportation, EDPa, No. 99- 64, 3/ 25/ 99.
In accord is the decision of the U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, KS, NM, OK), which joined the Seventh and Eleventh circuits in holding that the ADA does not permit suits against managers in their individual capacities. The Court similarly found that individual liability is barred under the ADA as it is under Title VII. Both laws, the Court explained, impose liability only on employers with 15 or more employees and their agents. Butler v. Prairie Village, Kansas, CA10, No. 97- 3291, 4/ 6/ 99 ( http:// www. kscourts. org/ ca10/ cases/ 1999/ 04/ 97- 3291. htm).
U. S. SUPREME COURT ARGUMENTS HELD - Oral arguments before the U. S. Supreme Court in Olmstead v. L. C. ( see “ ADA News” No. 60, 2/ 15/ 99, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 60. htm) were held on April 21st. The issue in this ADA case, which has attracted a lot of attention, is whether Title II of the ADA requires states to provide treatment for persons with mental disabilities in community placement when treatment can also be provided to them in a state hospital. During the arguments, the Justices worried aloud that mentally disabled people might be “ abandoned on the streets” if an anti- bias law is judged to give them a broad right to live in ADA News No. 63 - 42- May 15, 1999
homelike settings rather than state hospitals. “ What bothers me is writing something which, as it works out in the real world, leaves many who need to be in institutions out, abandoned on the streets,” said Justice Breyer. Questions and comments from Justices Stevens and O'Connor suggested similar concerns. Justice Souter appeared most hostile to Georgia's side of the case, but the hour- long argument session gave no clear indication how the nine- member court will rule. Approximately 76,000 mentally ill Americans currently housed in state institutions could be affected by the decision, expected this summer.
On April 28th and 29th, the Justices heard argument in two cases involving mitigating measures. The central question in the cases is whether a condition should be assessed in its corrected or uncorrected state for purposes of determining whether a person is protected by the law. The first involved a truck driver with high blood pressure which he controls with medication but who lost his job because of federal requirements. Murphy v. United Parcel Service, Inc., 141 F. 3d 1185 ( 10th Cir. 3/ 11/ 98). The second concerned sisters who were barred from becoming airline pilots because their uncorrected vision failed to meet federal standards. Sutton v. United Air Lines, Inc., 130 F. 3d 893 ( 10th Cir. 11/ 26/ 97). ( For more background on both, see “ ADA News” No. 59, 1/ 15/ 99, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 59. htm). Justice Antonin Scalia expressed the concern of the Court that the claimants’ ( and the EEOC’s) view that disabilities should be judged in their untreated state would dramatically extend the reach of the law beyond the 43 million Americans considered disabled when it was adopted. “ I’m worried that everybody in the country is protected from employment discrimination based on physical characteristics,” Scalia said, asking the claimant’s lawyer for one example that would not be covered by his reading of the law. “ This statute wasn’t meant to apply to all Americans,” Scalia said. Justice David H. Souter said he felt himself “ at sea” on what the criterion for ‘ substantial’ should be. “ I have difficulty in reading restaurant checks in a dim light,” Souter said. “ I have a limitation on the ‘ life activity’ of reading. Substantial?” Justice Stephen G. Breyer said at one point, “ I don't see how to get this statute to work,” perhaps capturing the Court’s frustration. " I really don't know how to figure it out," Scalia said.
The argument session was the last one of the Court's current term. The justices now have roughly two months to complete their unfinished business, which consists essentially of deciding 39 cases.
FEDERAL GOVERNMENT ACTS TO INCREASE INTERNET ACCESSIBILITY - The federal government, in an effort similar to that undertaken to open up access to public buildings and public transport systems through the ADA, is now focusing on the Internet. This month, it will unveil standards aimed at ensuring that websites operated by firms doing business with government agencies are fully accessible to persons with disabilities. Under the standards proposed, sites that use graphics will have to consider their impact on users with visual impairments. Those that include audio will have ADA News No. 63 - 43- May 15, 1999
to make sure they provide the text to go with it, so deaf users have full access. Even the makers of public Internet kiosks will have to overhaul their designs, taking into account the necessary height requirements for users confined to wheelchairs, experts predict. The standards are being developed by the Access Board, with the help of a committee made up of technologists. Judy Brewer, the director of the World Wide Web Consortium's Web Access Initiative and a member of the Access Board, said she believes the new standards will be a catalyst for commercial sites to improve access for users with disabilities. The Department of Justice has been ordered by Attorney General Janet Reno to oversee a yearly survey of sites’ compliance with the standards.
AFB LEGISLATIVE BRIEFING SERVICE - The Governmental Relations Group of the American Foundation for the Blind offers an electronic legislative briefing service, “ Words from Washington” ( WFW). WFW is available free of charge via Internet e- mail. As part of this service, subscribers periodically receive “ Words from Washington,” while Congress is in session. WFW is a brief report on what’s happening in Washington with frequent analysis of how developments in Washington affect individuals who are blind or visually impaired and the professionals who serve them. In addition, from time to time subscribers also receive alerts and updates on current federal legislation and other governmental developments of interest to individuals who are blind and the organizations who serve them. To receive “ Words from Washington,” send E- mail to afbgov@ afb. net.
1998 SAP/ STEVIE WONDER VISION AWARDS - The SAP/ Stevie Wonder Vision Awards for 1998 were given out at a gala celebration in New York, on August 12, 1998. The awards program was created by SAP, a leading German computer software company, and Stevie Wonder, the musician. The purpose is to spotlight computer technology companies and developers of access
technology which can help blind and visually impaired persons in the work force. A total of $ 500,000 in award money was granted to the winners in a variety of categories. The “ Product of the Year” award winner was Kurzweil Educational Systems, for their development of the Kurzweil 1000 PC- based reading machine. Sara Morley won the “ Pioneer of the Year” award for her educational training materials for Windows 95 designed to help blind and visually- impaired computer users understand the Windows 95 operating system.
EMPLOYMENT AND MENTAL DISABILITIES - Failure to accommodate workers' psychological problems has overtaken bad backs as the fastest- growing area of workplace discrimination complaints filed under the ADA. “ Everybody understands in 1999 that you can't discriminate against race or sex. They still may be doing it, but they know it's wrong,” said Bil Cash, an Equal Employment Opportunity Commission attorney in Memphis, Tenn. “ But I don't think you have that when you're talking about someone with a mental disability.” Claims of all kinds have risen by 20 percent a year since the ADA was passed in 1991. Claims for psychiatric disorders have nearly doubled, ADA News No. 63 - 44- May 15, 1999
accounting for 16 percent of the nearly 18,000 claims received by the EEOC. Back problems accounted for 13 percent of the ADA claims, and employees with vision and hearing impairments each filed fewer than 3 percent.
DISABILITY ETIQUETTE HANDBOOK - The City of San Antonio, Texas Planning Department and the Disability Advisory Committee have prepared a “ Disability Etiquette Handbook” to enhance opportunities for persons with disabilities to pursue their careers and independent lifestyles. The Handbook contains Reception Etiquette, Conversational Etiquette, Interview Scheduling Etiquette, Interviewing Technique Etiquette, Interviewing Courtesies for Effective Communication, Do and Don'ts, and a Glossary of Acceptable Terms.
The Handbook can be found on the Web at http:// www. ci. sat. tx. us/ planning/ handbook/ index. htm.
COELHO NAMED TO HEAD GORE CAMPAIGN - Tony Coelho, former Chairman of the President’s Committee on the Employment of People with Disabilities ( PCEPD), co- chair of the Presidential Task Force on Employment of Adults with Disabilities, and a self- disclosed person with a disability, has been named to be the Chairman of “ Gore 2000,” Vice President Gore’s campaign committee. “ The appointment of Tony Coelho to lead the Al Gore for President campaign is a historical milestone for Americans with disabilities,” said Dr. Fred Fay, Chairman of Justice for All, a disabilities advocacy group. “ Tony Coelho led the effort to pass the Americans with Disabilities Act in 1990. He has since served as Chair of the President's Committee on the Employment of People with Disabilities."
“ PEOPLE WITH DISABILITIES REACH FOR WEB ACCESS” - “ Six years ago Paul D'Addario was struck with retinitis pigmentosa, and his vision began to fail. … But D'Addario's not cut off from his PC or the Web. With the help of trainers from the Columbia Lighthouse for the