ADA news news reviews to peruse.

              ADA NEWS
2000
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" News Reviews to Peruse"
Number 71 January 15, 2000
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). Current and past issues of this publication are archived at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP Intranet website.
ADA News No. 71 - 1- January 15, 2000
SUPREME COURT: ADEA CANNOT BE APPLIED TO STATES - In a decision seen by many observers as a major step in a seemingly inexorable march by the U. S. Supreme Court to restrict ADA News No. 71 - 2- January 15, 2000
the ability of Congress to grant persons rights against States, the Court decided in Kimel v. Florida Board of Regents that the U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) was correct to dismiss a claim against a State entity under the Age Discrimination in Employment Act. “[ A] lthough the ADEA does contain a clear statement of Congress’ intent to abrogate the States’ immunity, that abrogation exceeded Congress’ authority under sect. 5 of the Fourteenth Amendment,” the Court held. What this apparently means is that State employees may no longer invoke federal law in charging that they have been discriminated against on the basis of their age, leading some to think that other federal anti- discrimination laws, including the ADA, may also fall victim to the same rationale. Justice Sandra Day O’Connor, writing for the majority, stated that the ADEA did not have the same constitutional standing as laws intended to remedy discrimination based on race and sex, because other classes of people “ have not been subjected to a history of purposeful unequal treatment.” Moreover, she continued, Congress had not considered any evidence, when passing the ADEA, that states had a pattern of discriminating against employee on the basis of their age. The ADEA makes it unlawful for an employer, including a State, “ to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual … because of such individual’s age.” 29 U. S. C. § 623( a)( 1). The ADA includes a similar provision for federal lawsuits against state employers who discriminate on the job and in state services; but the justices have accorded age and disability a lesser degree of constitutional protection than race and sex bias claims. “ This should be of grave concern,” said Georgetown University law professor Chai Feldblum, who helped draft the ADA. “ The question is whether there is enough evidence of state discrimination in the record [ for example] of state police departments not handling deaf people, the mentally retarded, very well. It is a close question.” Petitioners, three sets of plaintiffs, filed suit under the ADEA against their State employers, seeking money damages for the employers’ alleged discrimination on the basis of age, and the employers moved to dismiss the suits on the basis of the Eleventh Amendment. All three claims were appealed and consolidated before the U. S. Court of Appeals for the Eleventh Circuit, where the United States intervened on appeal to defend the constitutionality of the ADEA. In a divided panel opinion, the Eleventh Circuit held that the ADEA does not abrogate the States’ Eleventh Amendment immunity. The decision by the Supreme Court affirmed the Eleventh Circuit. The 5- 4 decision, and the dissent filed by Justice Stevens, highlighted the growing divide in the Court on this issue. Kimel v. Florida Board of Regents, No. 98- 791 ( together with No. 98- 796, United States v. Florida Board of Regents et al., also on certiorari to the Court), 1/ 11/ 00 http:// supct. law. cornell. edu/ supct/ html/ 98- 791. ZS. html.
WORK INCENTIVES BILL SIGNED INTO LAW - In a December 18th ceremony held at the Franklin D. Roosevelt Memorial in Washington, D. C., President Clinton signed the Work Incentives Improvement Act of 1999 ( WIIA) into law. The law is intended to allow millions of out- of- work Americans with disabilities to take jobs without fear of losing their government- sponsored health benefits under Medicare and Medicaid. Over nine million Americans currently receiving benefits could be eligible. The measure would allow people with disabilities to keep their Medicare coverage for an additional four and one- half years, for a total of almost eight years, after returning ADA News No. 71 - 3- January 15, 2000
to work. It also would allow states to let people with disabilities buy into Medicaid if they earn too much to qualify or lose eligibility because their health has improved. In addition, the final measure provides $ 250 million for a six- year demonstration program allowing states to give Medicaid coverage to people in the early stages of serious diseases, like AIDS or muscular dystrophy, that would make them too disabled to work without treatment. Congress sent the bill to the President on November 19th, after a conference committee had worked out differences in the House and Senate bills. The Senate approved the final bill November 19th by a 95- 1 margin, after the House had done so on a 418- 2 vote. President Clinton called the law the most important measure for the nation’s nine million people with disabilities since the passage of the ADA, and urged states to take advantage of the new opportunities to help them return to work.
EEOC’S ATTEMPT TO REVIVE SUIT REJECTED BY COURT - A federal district court in Chicago has rebuked the EEOC for seeking to reinstate a suit charging Rockwell International with violating the ADA by rejecting applicants based on the results of a “ nerve conduction” test. The EEOC’s suggestion that the court’s evidentiary rulings “ tied its hands” in the litigation is “ both inaccurate and offensive,” Judge Robert W. Gettleman of the U. S. District Court for the Northern District of Illinois wrote. “ If plaintiff’s hands are indeed tied, it finds itself in that position as a result of its own inadequacies.” In August, Gettleman granted Rockwell summary judgment on finding that the EEOC had failed to present evidence that the company perceived the applicants as substantially limited in the major life activity of working. The EEOC had relied on the testimony and report of its vocational expert to show that Rockwell perceived the applicants as precluded from a class of jobs or a broad range of jobs when it rejected them based on an abnormal result of a “ nerve conduction test,” which is intended to measure susceptibility to nerve conditions such as carpal tunnel syndrome. EEOC v. Rockwell International Corp., N. D. Ill., No. 95C3824, 12/ 16/ 99.
WAL- MART CHANGES JOB POLICIES FOR THE DEAF - Wal- Mart Stores Inc. will make corporate- wide changes in the hiring and training of new employees who are deaf or hearing impaired, and will pay $ 66,250 each to two men denied stock clerk positions at a Tucson, Ariz., store, under a consent decree negotiated by the EEOC and the Arizona Center for Disability Law, entered in federal court January 5th. Under terms of the accord, Wal- Mart agreed to make a series of changes in its national orientation and training program for new employees to make it accessible to deaf and hearing- impaired individuals. Those changes “ will have a significant positive impact for applicants and employees who are deaf and apply to any of the Wal- Mart stores throughout the nation,” EEOC Chairwoman Ida Castro said, in a statement announcing the agreement. The decree provides that Wal- Mart will revamp its corporate- wide orientation and training program for new employees to address the needs of the deaf and the hearing impaired within 60 days. EEOC v. Wal- Mart Stores Inc., D. Ariz., Civ. 98- 276, 1/ 5/ 00.
WAL- MART HELD LIABLE TO SHOPPER WITH DISABILITY - Where a shopper with a disability fell and broke her neck in a Wal- Mart bathroom that was not accessible, she can sue the ADA News No. 71 - 4- January 15, 2000
store for negligence per se for failing to comply with the ADA, according to a decision last January by the U. S. Court of Appeals for the Sixth Circuit ( MI, OH, KY, TN) in interpreting Georgia law. This appears to be the first decision in the country to hold that a lack of accessibility is per se negligence in a slip- and- fall case. If this opinion stands the test of time there may be a new day dawning for the traditional slip and fall case, at least where the injured victim has a disability within the meaning of the ADA. The decision gives plaintiffs who cannot get compensatory damages under the ADA a chance to recover for their injuries. Title III of the ADA prohibits disability discrimination in “ the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Plaintiffs who sue under Title III can get injunctive relief and attorney fees, but not money damages. Under the Sixth Circuit’s ruling, plaintiffs can, in effect, get damages for a violation of Title III by suing for negligence per se under state law. Using the reasoning of this decision a claim for negligence per se could be brought any time a person with a disability is injured because a “ place of public accommodation” is not accessible. Smith v. Wal- Mart Stores, Inc., CA6, No. 97- 5313, 1/ 27/ January 27, 1999 ( http:// www. law. emory. edu/ 6circuit/ jan99/ 99a0031p. 06. html).
SUPREME COURT ALLOWS LIMITS ON INSURANCE COVERAGE FOR AIDS - The U. S. Supreme Court rejected allegations of illegal bias and allowed an insurance company to provide less comprehensive health care coverage for AIDS- related illnesses than for other conditions under the same policy. The Court, without comment, turned down an appeal in which two HIV- positive men argued that the limit on AIDS coverage contained in their Mutual of Omaha health care policies violates the ADA. One policy, purchased in 1992, set a $ 25,000 lifetime coverage limit for AIDS- related illnesses but a $ 1 million maximum for other conditions. The other policy, purchased in 1997, had a $ 100,000 limit for AIDS- related illnesses and a $ 1 million limit for other ailments. A federal judge in Chicago ruled for the two men in 1998, but the U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) reversed that ruling. Mutual of Omaha did not refuse to sell insurance to people infected with the human immunodeficiency virus, the Appeals Court said, but instead made a coverage decision similar to a furniture store deciding not to sell wheelchairs. Lawyers for the two men argued that the Supreme Court should review the decision because the limit on AIDS coverage “ presents a classic case of disability- based discrimination.” The policy would limit coverage for diseases, such as pneumonia, when they are AIDS- related but would not limit coverage for the same disease when it is not AIDS- related, the appeal said. Mutual of Omaha’s lawyers argued that the insurance firm had not discriminated because it offered the men the same coverage given to other customers. Mutual’s policies limit coverage for other conditions such as alcoholism, drug addiction and mental illness, the company’s lawyers said. Doe vs. Mutual of Omaha Insurance Co., 99- 772, certiorari denied 1/ 10/ 00.
WORKER WITH HEPATITIS MAY PROCEED WITH ADA CLAIM - A warehouse worker who was discharged soon after notifying his employer that he had Hepatitis C can proceed to trial with his ADA claim, a federal judge in Missouri ruled November 4th. The worker submitted evidence that Interim Personnel Inc. discriminated against him both on the basis of his disability and on a ADA News No. 71 - 5- January 15, 2000
perception of his disability, Judge E. Richard Webber of the U. S. District Court for the Eastern District of Missouri ruled in denying the employer’s motion for summary judgment. The worker had been diagnosed with Hepatitis C, a disease he described as “ a life- threatening blood borne disease … which is often fatal, attacks the liver and can only be treated with powerful drugs which cause serious side effects.” The following week, Interim placed the worker on a leave of absence until further notice, advising him that the suspension was because of the disease. The company also referred him to its doctor, who provided a statement that he could perform his duties with no restriction and that he posed no unusual threat. According to the worker, after the diagnosis was made, Interim confronted him for the first time about an incident the previous January in which he admitted that he had allowed his wife to drive a forklift. The company terminated him on April 28 for violation of safety regulations, and he filed a lawsuit under the ADA alleging that the company terminated him because of his disability or because it regarded him as having a disability. The worker said that he was tired and weak all the time from the hepatitis and that the treatment drug made him fatigued and irritable, limiting his major life activity of working. He also testified that his doctor’s instruction that he always use a condom when having sexual intercourse substantially limited his major life activity of reproduction. He alleged that a supervisor and another high level manager at the warehouse expressed concerns about the contagiousness of the disease and that the discussions preceding his termination focused on his condition. The court found the worker had “ adequately alleged” that he was substantially limited in the major life activity of reproduction, under the standards set in the Supreme Court’s 1998 decision in Bragdon v. Abbott. While the company contended that the worker failed to consider the possibility of mitigating measures, such as artificial insemination, on his ability to reproduce, the court found he had no such obligation: “[ The worker] has alleged substantial difficulties in reproduction and the court does not believe that Bragdon supports Interim’s unsubstantiated assertion that he must allege that these difficulties are insurmountable.” The worker’s claim on the work limitation also was adequate to establish that the company regarded him as disabled, according to the court. The court noted his allegations that “ company personnel reacted with fear and anger,” soon after suspending and terminating him, and that co- workers and supervisors expressed fear that they would contract Hepatitis C, despite the report from the company doctor that he posed no unusual threat to the workplace. “ The court finds that [ the worker’s] allegations that Interim terminated him on the basis of mythology, rather than medical evidence, are sufficient to state a claim that Interim regarded him as disabled,” Webber concluded. Rollf v. Interim Personnel Inc., E. D. Mo., No. 2: 99CV44, 11/ 4/ 99.
DISABILITIES GROUP LISTS BEST, WORST FIRMS - The third annual “ Eagle and Turkey Awards” were given out last November, recognizing the best and the worst businesses in contributing to the incorporation of persons with disabilities. The awards are sponsored by Disability Rights Advocates, a nonprofit international disability law center. “ We like to recognize the heroes in the nation who are really helping to advocate the civil rights of people with disabilities,” said Patricia Kirkpatrick, DRA’s development director. “ We also wanted to point out the corporations and individuals who are really stalling the progress of people with disabilities.” ADA News No. 71 - 6- January 15, 2000
The Eagles recognize those who advocated the rights of those with disabilities, while the Turkeys are for those who impede their progress. The organizations who received Eagles are:
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Safeway Inc., a grocer with stores in 18 states, the District of Columbia and Canada, for its impressive record of hiring people with disabilities at their stores.
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Breast Health Awareness for Women with Disabilities at Alta Bates Medical Center in Berkeley. Its breast health center is designed specifically for women with disabilities, providing service to women who otherwise would go without.
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Jeremy Alliger, artistic director and producer of Boston- based Dance Umbrella, a contemporary dance company that presents programs in which people with disabilities participate in many dance numbers.
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The Work Incentives Improvement Act of 1999. This legislation ensures that people with disabilities will not lose their health care benefits if they go to work.
Turkeys were given out to the following organizations:
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Federated Department Stores Inc., the nation's largest operator of department stores, for failing to comply with the Americans With Disabilities Act.
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United Parcel Service for not providing sign language interpreters to its deaf employees during staff and safety meetings. The company was also criticized for not allowing workers with monocular vision to drive its delivery vehicles.
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United Airlines for its poor record of customer service and mistreatment of passengers mobility equipment, such as wheelchairs. DRA says the airline received the most complaints out of all airlines.
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Princeton University for appointing Peter Singer as DeCamp Professor at the Center for Human Values. Singer has been known for his views that advocate the killing of infants with disabilities that could live productive lives. Princeton was also criticized for not having a disability resource center and studies program.
DISABILITIES WEBSITE OF THE MONTH - “ The real problem of blindness is not the lack of eyesight. The real problem is the misunderstanding and lack of information which exist. If a blind person has proper training and opportunity, blindness is only a physical nuisance.” Thus opens the website of the National Federation of the Blind, an organization dedicated to the goal of helping blind persons achieve self- confidence and self- respect and acting as a vehicle for collective self- expression by the blind. The organization, founded in 1940, is the nation’s largest ADA News No. 71 - 7- January 15, 2000
organization of blind persons, with over fifty thousand members; state chapters in all fifty states, Washington, D. C. and Puerto Rico; and hundreds of local chapters throughout the country. The website is “ Bobby approved,” as one might expect, and is devoid of many of the splashy touches we have become used to on websites. However, the opening page contains links to a multitude of resources and information useful for blind persons as well as those with other disabilities and those without. Some favorites are “ Questions From Kids About Blindness” (“ Should I help a blind person to cross the street?,” “ How does a blind person know he's in front of his house?”); the National Organization of Parents of Blind Children; “ Job Opportunities for the Blind;” and “ Leaders of the NFB” (“ The Blind Who Lead the Blind”). The NFB website can be found at http:// www. nfb. org.
VOCATIONAL THERAPIST’S REPORT SUPPORTS WORKER’S ADA SUIT - The U. S. Court of Appeals for the Seventh Circuit has reinstated a case by a worker with dyslexia and learning disabilities who said the Wisconsin Department of Transportation violated the ADA by transferring her after she could not learn a new computer system. Writing for the Court, Judge Ilana Diamond Rovner ruled that a vocational counselor’s report that the worker could learn a new computer system with proper training geared toward her disabilities raised a triable issue of fact regarding her ability to do the new job with reasonable accommodations. The worker had provided her employer with a letter from a doctor which stated that she retained information that she had known for a long period of time, but had trouble remembering new information on a day- to- day basis. The doctor wrote that she would be slower in learning new information and work- related skills and that she would require specialized instruction to accomplish new skills. The Department denied a union- sponsored request that it provide a specialist, available at no cost from the state department of vocational rehabilitation, to assist the worker in learning the new system. Her supervisor later informed her if her performance did not improve in three to four months, she would be subject to termination, or she could transfer to another unit at her same classification and salary. The worker took the transfer under protest, arguing that her disabilities had not been accommodated and that the new job did not provide the same promotional opportunities as the old job, the Court said. The Court rejected the Department’s contention that it provided a reasonable accommodation by transferring the worker or by trying to meet her training needs. Reassignment should be used as a method of accommodation only when the person cannot fulfill the requirements of the current position with accommodation, the Court said. “ The Department may have been well- meaning in its efforts, but its attempts to accommodate her were not reasonable because they were not tailored to address the problems posed by her disability,” the Court concluded in remanding the case. Vollmert v. Wisconsin Department of Transportation, CA7, No. 98- 3673, 11/ 24/ 99 ( http:// www. kentlaw. edu/ 7circuit/ 1999/ nov/ 98- 3673. html).
HARASSMENT ALONE INSUFFICIENT WITHOUT TANGIBLE EMPLOYMENT ACTION - The U. S. Court of Appeals for the Seventh Circuit affirmed the dismissal of a claim brought by a Chicago police sergeant who alleged that he was harassed in violation of the ADA and subjected to a hostile work environment because of his severe sleep apnea. The sergeant claimed that, as a ADA News No. 71 - 8- January 15, 2000
result of his condition, he was given negative evaluations and denied transportation, supervisory responsibilities and permission to work a second job. He also claimed that he was made fun of because he wore orthopedic shoes. The sergeant had been accommodated by the department by being assigned exclusively to work days. The district court found that, because sleep is a major life activity, the sergeant’s apnea could be a disability were it sufficiently severe. The Court also assumed, without deciding, that harassment that rises to the level of a hostile work environment could constitute a violation of the ADA. Nevertheless, the trial court decided that the sergeant could not prove that he had been subjected to a hostile work environment, and granted summary judgment. The Appeals Court, also assuming without deciding that a hostile work environment claim was available under the ADA, agreed with the lower court. The sergeant’s “ claims fail because he cannot prove that he suffered a materially adverse action,” stated the Court. Silk v. City of Chicago, 194 F. 3d 788 ( CA7 1999) ( http:// www. kentlaw. edu/ 7circuit/ 1999/ oct/ 98- 1155. html).
MITIGATING EFFECT OF HEARING AIDS MUST BE CONSIDERED - The U. S. Court of Appeals for the Fifth Circuit ( TX, LA, MS) has sent a case back to the trial court with directions to consider the mitigating effect of hearing aids for a Child Protective Services Specialist determined to have a disability because of a hearing impairment. The specialist has a bilateral hearing impairment, and wears a hearing aid in her right ear to help correct the impairment. She was required to use a speaker phone during her initial training in telephone intake in order that her supervisor could hear both sides of telephone conversations, and was denied permission to pick up the telephone receiver in order to hear better. Less than two months after being hired, she was questioned about her impairment by her supervisor, then informed she would have to quit or be fired. The federal district court found that the specialist’s impairment substantially limited her major life activity of hearing and entered judgment for the employee, but, prior to the Supreme Court’s decision in Sutton, did so without considering the possible mitigating effects of hearing aids. Testimony before the court had established that her hearing could be corrected to 92% with one hearing aid, and 96% with two. Suggesting that these facts may indicate the absence of a substantial limitation, the Court vacated the lower court’s decision and remanded for consideration in light of Sutton. Ivy v. Jones, 192 F. 3d 514 ( CA5 1999) ( http:// www. ca5. uscourts. gov/ opinions/ pub/ 98/ 98- 11234- CV0. HTM).
DISCRIMINATORY ANIMUS UNNECESSARY IN FAILURE TO ACCOMMODATE CASE - An employer that knows about an employee’s disability and fails to make reasonable accommodation has violated the ADA, regardless of the employer’s intent, according to a decision by the U. S. Court of Appeals for the First Circuit ( ME, NH, MA, RI, PR). The appeal was from the dismissal by the district court of a case involving multiple claims by an employee of New Balance shoes. The employee had suffered through an appalling course of harassing behavior by co- workers and supervisors, apparently based primarily on his sexual orientation, that culminated in his discharge. His claims were dismissed by the trial court, and the majority affirmed by the Appellate Court. That Court, however, remanded those portions of the case pertaining to a failure to accommodate ADA News No. 71 - 9- January 15, 2000
claim - the employee had a hearing impairment - because the district court had rejected the employee’s failure to accommodate claim “ because the appellant had not adduced evidence of discriminatory animus directed at his disability.” “[ U] nder the ADA,” the Court wrote, “ the term ‘ discriminate’ includes … not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability … unless [ the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [ the employer]. … Unlike other enumerated constructions of ‘ discriminate,’ this construction does not require that an employer’s action be motivated by a discriminatory animus directed at the disability. Rather, any failure to provide reasonable accommodations for a disability is necessarily ‘ because of a disability’ - the accommodations are only deemed reasonable ( and, thus, required) if they are needed because of the disability - and no proof of a particularized discriminatory animus is exigible. … [ A] n employer who knows of a disability yet fails to make reasonable accommodations violates the statute, no matter what its intent, unless it can show that the proposed accommodations would create undue hardship for its business.” Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252 ( CA1 1999) ( http:// www. law. emory. edu/ 1circuit/ oct99/ 99- 1043.01a. html).
RULING ON TEST SCORES SHORT- LIVED - A federal judge in Philadelphia earlier this month issued an order to a national testing service that it may no longer annotate the test scores of persons given special testing accommodations because of the test- takers’ disabilities. Judge M. Faith Angell of the U. S. District Court in Philadelphia prohibited the National Board of Medical Examiners from marking the test scores of a medical student with multiple sclerosis to indicate he had extra time to complete the exam. The judge ruled that such markings could lead administrators of medical residency programs to discriminate against the student. The ruling stood for less than a week, as attorneys for the medical examiners board appealed to the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI), which stayed the injunction. Attorneys for the board argued that the ADA could not be used against the board to prevent discrimination by third parties.
TRAINING OPPORTUNITIES
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Washington, D. C. ( April 27- 28, 2000) Americans with Disabilities Act Briefing, sponsored by National Employment Law Institute, ( 303) 861- 5600.
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Washington, D. C. ( April 25- 28, 2000) National Association of ADA Coordinators National Conference, information at the NAADAC website, http:// janweb. icdi. wvu. edu/ naadac/.
MANAGER WITH ADD FAILS TO MAKE ADA CASE - A manager who claimed he was fired after revealing that he had Attention Deficit Disorder failed to make a prima facie case of disability discrimination, according to the U. S. Court of Appeals for the Sixth Circuit. After working for Electronic Data Systems (“ EDS”) for nearly ten years, the manager revealed his ADD in a team- ADA News No. 71 - 10- January 15, 2000
building exercise as part of a company- sponsored “ Workforce Effectiveness” program. While most people at the company were sympathetic, another manager ( Hitchcock) who was later to become his supervisor, allegedly referred to him as “ the mentally ill guy on Prozac that’s going to shoot the place up.” The manager’s position was eliminated in 1995 while he was on a medically- related leave of absence. He sued EDS under the ADA and state law, and the federal district court dismissed the claim. The Appellate Court failed to find direct evidence in the record of discrimination, and found that he did not submit evidence showing the employer’s stated reason for the elimination of his position to be pretext. Hopkins v. Electronic Data Systems Corp., CA6, No. 97- 2071, 11/ 15/ 99 ( http:// pacer. ca6. uscourts. gov/ cgi- bin/ getopn. pl? OPINION= 99a0385p. 06).
“ TOTAL DISABILITY” DISQUALIFIES - A former employee who is totally disabled by mental illness is not a “ qualified individual” and therefore is not entitled to bring suit under Title I of the ADA, the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) held January 3rd. The employee, totally disabled by severe depression, sued her former employer and disability insurance carrier when her benefits terminated after two years, as provided by the policy. ( The policy offered no similar limitation for physical disabilities.) The district court dismissed the lawsuit, and the Appellate Court affirmed. “ That [ the employee] seeks a remedy for discrimination in fringe benefits applicable to a time following her employment does not alter the plain statutory requirement that she must be able to ‘ perform the essential functions of the employment position’ to sue under Title I of the Act,” the Ninth Circuit said in an opinion written by Judge Andrew J. Kleinfeld. “ Five circuits have so held, and we are not persuaded to decide the issue differently.” The Court also joined with those other circuits in holding that “ former employees are not ‘ qualified individuals’ capable of suing under Title I of the Act.” Weyer v. Twentieth Century Fox Film Corp., CA9, No. 98- 35215, 1/ 3/ 00 ( http:// www. ce9. uscourts. gov/ web/ newopinions. nsf/ f606ac175e010d64882566eb00658118/ a902126404f9c7fe8825685b006502f3? OpenDocument).
TESTS OF DISRUPTIVE WORKER ALLOWABLE UNDER ADA - A Michigan school district did not violate the ADA by ordering mental and physical examinations of a veteran teacher who engaged in several disruptive incidents, the U. S. Court of Appeals for the Sixth Circuit ruled November 29th. The Appeals Court rejected the teacher’s claim that his employer “ regarded” him as disabled under the ADA. “ A request that an employee obtain a medical exam may signal that an employee’s job performance is suffering, but that cannot itself prove perception of a disability because it does not prove that the employer perceives the employee to have an impairment that substantially limits one or more of the employee’s major life activities,” Judge Danny Boggs wrote for the Court. “ Deteriorating performance may be linked to motivation or other reasons unrelated to disability, and even poor performance may not constitute a disability under the ADA.” After working for the school district for over seventeen years, “ his behavior apparently changed for the stranger,” the Court said. Over the course of two weeks, he engaged in “ disruptive and abusive verbal outbursts” at a school board meeting addressing various grievances he had filed, disclosed confidential grade information to a local newspaper, and used ADA News No. 71 - 11- January 15, 2000
inappropriate language regarding another faculty member in a letter to the student government president. After he failed to report to a meeting with the superintendent to discuss his behavior, the superintendent asked a psychologist for an informal review of the teacher’s behavior to judge his fitness as a teacher and whether professional attention was needed. The psychologist suggested that the teacher had a possible psychiatric disorder for which a more formal assessment should be considered. Based on that advice, the superintendent recommended mental and physical fitness- for- duty exams and suspended the teacher with pay until the school board acted on the recommendation. The teacher refused to comply with the order and continued to ignore subsequent written directives from the superintendent requesting him to schedule the tests. In July, the school board determined that he should be discharged for acts of misconduct and insubordination. The teacher filed suit under the ADA, arguing that the school district regarded him as disabled under the act and illegally suspended him for refusing to take the tests. A federal judge granted summary judgment to the employer and the teacher appealed. “ Given that an employer needs to be able to determine the cause of an employee’s aberrant behavior, this is not enough to suggest that the employee is regarded as mentally disabled,” Judge Boggs wrote. “ As the district court ably explained, a defendant employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.” Sullivan v. River Valley School District, CA6, No. 98- 2143, 11/ 29/ 99 ( http:// pacer. ca6. uscourts. gov/ cgi- bin/ getopn. pl? OPINION= 99a0395p. 06).
CONFIDENTIALITY PROVISIONS DO NOT PROTECT CO- WORKERS’ MEDICAL INFORMATION - The ADA does not protect employees’ medical information from discovery in a co- worker’s ADA suit, a federal magistrate judge in Kansas ruled December 23rd. The purpose of the ADA’s prohibition against disclosure of medical information is to ensure that when a medical examination or inquiry is allowed for job- related or business necessity reasons, such information “ is disclosed only to those with a legitimate need for the information,” Judge David J. Waxse of the U. S. District Court for the District of Kansas wrote. “ In other words, the confidentiality provisions further the purpose behind the ADA’s goal of ensuring equal employment opportunities for the disabled,” Waxse said. Overriding the employer’s objections to releasing the information, he concluded, “ Disclosure of the medical information in this case would have a similar purpose - it has the potential to help plaintiff establish [ her] failure to accommodate claim. Surely, Congress never intended for a defendant charged with violating the ADA to use the ADA’s confidentiality provisions to impede a plaintiff’s ability to discover facts that might help the employee establish his/ her claims.” The employee was attempting to obtain the employer’s records of accommodations given to other employees but denied to her. Scott v. Leavenworth Unified School District, D. Kan., No. 99- 2098- GTV, 12/ 23/ 99.
DENIED BEER PURCHASE, JURY SIDES WITH CONVENIENCE STORE - John Kirby and one of his buddies went on a beer run before a Sunday night football game over two years ago. Kirby, whose cerebral palsy causes him to walk with a limp and have slurred speech, pulled out his wallet to make the purchase at a Modesto, California 7- 11 store. He was told by the clerk that the sale would not be made. “ He told me he was unable to sell to me because I am handicapped,” said Kirby. “ He even went on to say that this was company policy to do so, and having a beer was not good for me ‘ because you’re handicapped.’” Kirby took the 7- 11 to court and last week, a jury ruled in favor of the store. “ It was an innocent mistake,” says Davod Sidran, attorney for 7- 11. “ The clerk didn’t know what cerebral palsy was. He thought Mr. Kirby was intoxicated.” “ The jury admitted that the clerk was wrong,” says Kirby’s attorney Dan Mitchell. “ But there’s a $ 2,000 fine for selling alcohol to someone who is intoxicated and they felt he had to make a business decision.”
‘ MINISTERIAL EXCEPTION’ LETS CHURCH OFF HOOK ON BIAS CLAIMS - The “ ministerial exception” to federal civil rights laws bars a suit by a Methodist church music director who claimed that she was unlawfully fired in violation of the ADA, the U. S. Court of Appeals for the Fifth Circuit decided December 27th in an issue of first impression. Although the Fifth Circuit had never before found that a choir director qualified as a “ minister” for purposes of the “ ministerial exception,” Judge Reynaldo G. Garza found that the plaintiff functioned as one of the church’s spiritual and pastoral leaders. The Appeals Court cited its 1972 decision in McClure v. Salvation Army ( 460 F. 2d 553) which held that applying the provisions of Title VII of the 1964 Civil Rights Act to an employment relationship between a plaintiff and her church would violate the First Amendment. In McClure, an ordained minister sued the Salvation Army after being fired by the religious organization. “ In this court’s view, Congress did not intend, through nonspecific wording of provisions of the Civil Rights Act relating to equal employment opportunities, to regulate the employment relationship between church and minister,” Garza wrote. The Fifth Circuit affirmed a federal district court’s grant of summary judgment to defendants. During her employment, the music director experienced a variety of ailments, including asthma, endometriosis, migraine headaches, and osteoarthritis in both knees. She alleged that the pastor did not allow her to change her work schedule so she could recover from knee surgery, and that he similarly refused to accommodate a chemical sensitivity brought on by exposure to cleaning materials. After she was fired in May 1995, the director sued under the ADA and a Louisiana retaliatory discharge statute. In granting summary judgment on the disability and retaliation claims, the district court held that her position with the church fell within the “ ministerial exception” to employment discrimination claims. Starkman v. Evans, CA5, No. 98- 31183, 12/ 27/ 99 ( http:// www. ca5. uscourts. gov/ opinions/ pub/ 98/ 98- 31183- CV0. HTM).
ADA News No. 71 - 12- January 15, 2000
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" News Reviews to Peruse"
Number 72 February 15, 2000
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). Current and past issues of this publication are archived at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP Intranet website.
AWARD FOR DEPRESSION VACATED - The U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) has vacated a jury’s award to a credit card services clerk who convinced the jury that his employer had harassed him on the basis of his disability, depression. The jury had rejected the clerk’s failure to accommodate claim, but had awarded the clerk $ 178,000 on his harassment claim. The Appeals Court found that the clerk had failed to produce sufficient evidence that he had been harassed on the basis of a disability. Depression in the workplace is a serious problem, this decision notwithstanding. Recent studies have found ADA News No. 72 - 14- February 15, 2000
widespread depression in workplaces. In one survey, 80% of human resource professionals stated that one or more of their employees had experienced depression once or more in the previous three years. A published 1993 report stated that depression costs American business approximately $ 44 billion each year because of lost productivity and excessive absenteeism. More information can be found at the website of the National Foundation for Brain Research ( http:// www. treatdepression. com) and the National Institute of Mental Health ( http:// www. nimh. nih. gov). The caae is Cannice v. Norwest Bank Iowa N. A., CA8, No. 98- 2230, 8/ 13/ 99 ( http:// www. wulaw. wustl. edu/ 8th. cir/ Opinions/ 990813/ 982230P. pdf).
STATE’S REFUSAL TO REASSIGN OFFICER RESULTS IN LIABILITY - A correctional officer’s $ 420,000 damage award against New York State and the state Department of Correctional Services has been affirmed by the U. S. Court of Appeals for the Second Circuit ( NY, VT, CT). The officer, who had reactive airway disease, a severe allergy to tobacco smoke, asked to be assigned to a location where he would not be exposed to smoke. Despite numerous requests and grievances made by the officer, the Department refused to reassign him to a no- smoking facility. Following a week’s absence from work to recover from smoke exposure, the officer returned to work with a note from his doctor, was again ordered to report to a smoking facility, and was suspended when he refused. The Appeals Court affirmed the trial verdict, finding that evidence supported the finding that he had been retaliated against on the basis of his disability. The Court rejected the State’s argument that the officer had failed to prove his condition amounted to a disability under the ADA. Muller v. Costello, CA2, No. 98- 7491, 8/ 11/ 99 ( http:// www. law. pace. edu).
MARTIN LIVING THE DREAM - Casey Martin, the professional golfer who took on the Professional Golfers’ Association for the right to use a golf cart because of his disability, had a great round to start his first tournament on the PGA tour. Martin fired a 4- under- par 68 in the first round of the Bob Hope Chrysler Classic in Bermuda Dunes, California on January 19, 2000. The 27- year- old Stanford graduate was born with a birth defect in his right leg known as Klippel- Trenauney- Webber Syndrome, which causes deterioration in the bone and muscles, a condition that makes it difficult for him to walk the long courses included on the tour. He successfully sued the PGA Tour two years ago under the ADA, saying he would be unable to compete if he had to walk like other players. A Federal judge in Oregon agreed, and Martin has used the cart the last two years on the Nike Tour. He hopes to play 25 PGA events starting with three California events - the Hope, AT& T Pebble Beach Pro- Am and the Buick Invitational in San Diego. Despite his good beginning, he finished out of the money in the Hope, which was won by tour veteran Jesper Parnevik.
DISABILITIES WEBSITE OF THE MONTH - “ The mission of the National Parent Network on Disabilities ( NPND) is to provide a presence and national voice for ALL families of children, youth and adults with disabilities.” More than just a website for parents, the NPND website provides an impressive collection of information on disability- related matters, as well as links to a ADA News No. 72 - 15- February 15, 2000
myriad assortment of companion sites. Information is easily available on issues as diverse as juvenile justice, the federal budget, hate crimes prevention and, of course, the ADA. This easy to navigate site is Bobby approved. “ We advocate because we believe. We believe because we know there is a better ‘ right’ way. We persevere because it’s all we know......”
CLAIMS AGAINST CONRAIL TIMELY, PLAINTIFFS MAY PROCEED TO TRIAL - Two Conrail employees who filed individual suits following the decertification of a class action alleging that the railway unlawfully refuses to reinstate workers on its disabled list can proceed with their claims under the ADA, a federal district court in Pittsburgh ruled November 16th. Although neither employee filed individual discrimination charges with the EEOC or PHRC, two judges in the U. S. District Court for the Western District of Pennsylvania held in separate opinions issued earlier this year that individual former class members may “ piggyback” on the timely filed administrative charges of the named plaintiffs in the decertified class action. The rulings extended the “ single filing rule,” under which a claimant can be a class member if the named plaintiff in the class action timely filed an administrative charge that alleged class- wide discrimination. The judges, however, withheld a decision on whether the employees actually met the conditions of the single filing rule for their claims under the ADA, explaining that it “ will only apply if the piggybacking plaintiff would have been able to file a timely charge on the date that the named plaintiff did.” Hilton v. Consolidated Rail Corp., W. D. Pa., No. 98- 364, 11/ 16/ 99; Mayo v. Consolidated Rail Corp., W. D. Pa., No. 96- 656, 11/ 16/ 99.
DOJ SUES PHYSICIAN’S GROUP - The Department of Justice ( DOJ) announced that on January 10, 1999, it filed an action under Title III of the ADA against a group of neurosurgeons in Tulsa, Oklahoma, Neurosurgery Specialists, because a physician affiliated with the practice group refused to treat a patient with HIV. The DOJ began an investigation following a complaint from a person who sought treatment in November, 1997 from a member of Neurosurgery Specialists. The DOJ investigation revealed that the surgeon learned that the complainant had HIV during a medical examination, and that the surgeon told the complainant that he and his staff would not operate on a patient with HIV. The civil suit seeks injunctive relief against future violations of the ADA, damages in an unspecified amount to compensate the complainant, and a civil penalty payable to the federal government.
TRAINING OPPORTUNITY - The National Employment Law Institute is presenting an “ Americans with Disabilities Act Briefing” in Washington, D. C. on April 27- 28, 2000. For information about this event, contact NELI at ( 303) 861- 5600, or visit the NELI website at http:// www. neli. org/ programs. asp? ProgramID= 2.
NOVEL CORRECTIONS CLAIM REJECTED - Two state prisoners in California who are serving terms of fifteen years to life for second- degree murder sued the California Department of Corrections and the parole board, asserting that their policy of considering a prisoner’s substance abuse history when making parole decisions violates Title II of the ADA. The remedy they sought ADA News No. 72 - 16- February 15, 2000
was a prohibition against the Board “[ c] ontinuing to deny plaintiffs a parole release date primarily because of their substance abuse disabilities.” The Appellate Court considered the claim as a petition for habeas corpus asserting rights under the ADA. Citing Pennsylvania Department of Corrections v. Yeskey ( 118 S. Ct. 1952, 1954 ( 1998)), the Court noted that the ADA does apply to state prisons, and observed it saw “ no reason to believe that ADA claims should be treated any differently than § 1983 claims when examining whether a prisoner’s case should have been brought under habeas corpus.” Framing the issue of first impression as “ whether appellants’ ADA claim for injunctive relief is a claim that, if successful, necessarily would imply the invalidity of their continuing confinement,” the Court concluded that it does not. Bogovich v. Sandoval, 189 F. 3d 999 ( 9th Cir. 1999) ( http:// www. ce9. uscourts. gov/ web/ newopinions. nsf/ f606ac175e010d64882566eb00658118/ b69679bfbb362ac1882567dd005efe5f? OpenDocument).
DEPRESSED CITY CLERK CAN PROCEED WITH ADA CASE - A Philadelphia district attorney’s office clerk denied extended medical leave and then fired while she was experiencing major depression can proceed with her claim that the city violated the ADA, the U. S. District Court for the Eastern District of Pennsylvania ruled November 23rd. Denying the city summary judgment, Judge Louis C. Bechtle found that a reasonable jury could reject the city’s arguments that the clerk was not disabled under the ADA because her disability was limited in duration, that she was not qualified to do her job because she could not attend work, and that granting additional leave time was an undue hardship for the city. Civil service regulations state that extended medical leave is not to exceed one year, but that extra time may be granted for “ meritorious” reasons. The clerk pointed out that the city granted extended leave following FMLA leave to two other employees during the same period when her request was denied. The clerk maintained that she was disabled under the act because her depression substantially limited her in the major life activity of working. The court acknowledged that temporary, non- chronic impairments with little or no long- term impact are usually not disabilities covered by the ADA; however, a severe condition with an indefinite duration, expected to last at least several months, could constitute a disability, the court said, citing the Tenth Circuit’s 1998 decision in Aldrich v. Boeing Co., 146 F. 3d 1265 ( See “ ADA News” No. 54, 8/ 15/ 98 ( http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 54. htm). Shannon v. Philadelphia, E. D. Pa., No. 98- 5277, 11/ 23/ 99.
DISTRICT COURT FINDS HARASSMENT WAS JUST ‘ MACHO HORSEPLAY’ - A retarded factory worker who alleged that his co- workers harassed him sexually, made embarrassing and humiliating statements about his mental disability, and physically attacked him on the job failed to convince a federal district judge in Philadelphia that his case should go to trial. Dismissing a series of federal and state civil rights claims against World Flavors Inc., Judge Lowell A. Reed Jr. of the U. S. District Court for the Eastern District of Pennsylvania found that the more egregious allegations brought by the plaintiff were unsubstantiated and the remaining charges “ consisted of macho horseplay and adolescent roughhousing,” which failed to establish liability under federal or ADA News No. 72 - 17- February 15, 2000
state law. They included allegations that his co- workers twice attempted to forcibly sodomize him, beat him, stuffed him in a garbage can, posed vulgar and sexual questions and propositions, and made embarrassing and humiliating statements to him about his mental disability. He alleged that although he reported the incidents to his supervisor, the conduct continued. In September 1996, his employment was terminated following “ a near- violent argument” in the company parking lot, according to the court. He filed suit against his former employer under Title VII of the 1964 Civil Rights Act, the ADA, the Pennsylvania Human Relations Act, and Pennsylvania common law. “ What initially was alleged to be a serious case of workplace harassment now appears to have consisted of macho horseplay and adolescent roughhousing in a context where such behavior was the common and accepted mode of social interaction,” Judge Reed wrote. “ While the court might frown upon such conduct in its own chambers, what constitutes appropriate social conduct in chambers cannot form a reliable guide to workplace etiquette in a food plant, nor can it provide a legal basis for liability under federal or state law.” Pirolli v. World Flavors Inc., E. D. Pa., 98- 3596, 11/ 23/ 99.
UNRECONCILED STATEMENTS MUST BE EXPLAINED - A traveling saleswoman who applied for and received disability benefits after two on- the- job accidents cannot claim that her termination violated the ADA, the U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) affirmed November 9th. The plaintiff’s “ bald” assertion in her ADA suit that she can perform the essential functions of her job, with or without reasonable accommodation, “ crashes face first against her claim of total disability in her [ Social Security Disability Insurance] application. We cannot permit litigants to adopt an alternate story each time it advantages them to change the facts,” Judge Michael S. Kanne wrote for the majority. Although the U. S. Supreme Court recently held that a statement of total disability in an application for benefits does not judicially estop an employee from later asserting coverage as a qualified individual with a disability under the ADA, any contradictions between the two statements must be reconciled, the appeals court explained, referring to Cleveland v. Policy Management Systems Corp., 119 S. Ct. 1597 ( 1999). The saleswoman “ presented no explanation of the contradiction between her statements before the [ Social Security Administration] and her statements to the district court on her ADA claim,” the court ruled. Feldman v. American Memorial Life Ins. Co., CA7, No. 98- 1831, 11/ 9/ 99 ( http:// www. kentlaw. edu/ 7circuit/ 1999/ nov/ 98- 1831. html).
OSHA ERGONOMICS RULE - Meeting the Occupational Safety and Health Administration’s goal of finalizing its just- proposed ergonomics rule by December 2000 “ would be truly miraculous” given its record of accomplishment on past rulemakings, the agency’s top regulatory official conceded November 30th. Marthe Kent, director of OSHA Safety Standards Programs, said the agency’s administrator, Charles N. Jeffress, is committed to a one- year deadline for the rulemaking, with much of the work accelerated during a series of nationwide public hearings in February, March and April. “ He says we’ll have the rule out in December 2000. That would be a first for OSHA; it would be a first for any rule [ of] this size,” Kent said. OSHA published its long- awaited ergonomics proposal November 23 in hopes of preventing some 300,000 injuries ADA News No. 72 - 18- February 15, 2000
reported each year that are related to repetitive motion and other ergonomic- related hazards. The proposal would require employers in manual handling and manufacturing operations to implement ergonomics programs in their workplaces, but would extend to other work sites if employers record just one musculoskeletal disorder. The proposal does not apply to employers in agriculture, maritime operations, or construction. Kent said that OSHA has attracted enormous publicity over the rule and noted that much of the reaction, particularly from industry groups, has been critical of the agency’s approach. But she said the rule is likely to undergo significant changes as OSHA reacts to information provided at the upcoming public hearings as well as formal comments submitted to the agency.
FIRED UPS DRIVER CAN PROCEED UNDER ADA - An injured United Parcel Service driver who was fired when he followed his private doctors’ advice and refused to return to work even though the company doctor had cleared his return can proceed with his suit under the ADA because he is substantially limited in the major life activity of lifting, a federal district court in Kansas decided. The driver worked for UPS under lifting and bending restrictions because of numerous injuries to his back, hip, and limbs. After he was treated for severe pain in September 1996, he was released for work as a package car driver with no restrictions by the company doctor. Package car drivers deliver and pick up packages from UPS customers. He declined, however, to return to work because of the pain and consulted four other doctors, each of whom restricted him from working because of his physical condition. The company doctor then restricted him from working indefinitely because of his use of narcotic analgesics. In April 1997, the company doctor released him to work full duty with no restrictions. The driver refused to report to work, informing his supervisors that he was restricted from working by his own physicians. He was fired soon after for being absent from work and failing to notify management prior to his absence. In his suit, the driver claimed that he was really fired because of his disability. The court rejected UPS’s argument that the driver cannot proceed under the ADA because the company never denied him reasonable accommodation. “[ The driver’s] knowledge of available positions at the time of his request for a transfer, however, is irrelevant to the inquiry whether defendant denied him reasonable accommodations,” the court said, concluding that the driver had raised a factual issue about whether UPS failed to accommodate him. He also submitted evidence that may show that UPS’s purported reason for firing him - his absence - was a pretext for discrimination, the court found. Moroney v. United Parcel Serv. Inc., D. Kan., No. 97- 2618- GTV, 10/ 15/ 99.
THE NATIONAL ARTS AND DISABILITY CENTER “ ARTSACCESS” - The National Arts and Disability Center invites performers, arts administrators and educators to ArtsACCESS, an online conference on the inclusion of performers and audience members with disabilities in the media and performing arts. The conference is open 24 hours a day and participants may visit as frequently as they want. Anyone can simply register for free at http:// nadc. ucla. edu/ conference. html the first time they visit the site. The site features transcripts from the presentations given at the Association for Theatre and Accessibility and Coalition Partners Conference, “ Promoting Creative Power” held in Los Angeles in May 1999. ArtsACCESS participants can read presentations from speakers from the performing and media arts, as well as dancers and performers from international and U. S. theater and mixed ability dance companies. Topics include audience development, careers in the arts, funding resources, developing and pitching a treatment, images of persons with disabilities in the media, artistic quality, and how to develop a one- person show. In addition you can see newly developed web tours and talk about the critical issues related to inclusion in the arts. The NADC is the national information, technical assistance and referral center specializing in the field of arts and disability. The NADC is dedicated to promoting the full inclusion of children and adults with disabilities into the visual, performing-, media- and literary arts communities. Its resources, directories, annotated bibliographies, related links and conferences serve to advance the careers of artists with disabilities and foster access to the arts. The NADC is a project of the University of California, at Los Angeles ( UCLA) University Affiliated Program.
ANNOTATION - “ Hate Crimes Against People With Disabilities,” Mark Sherry, School of Social Work, University of Queensland - a disturbing and important presentation of a normally “ unseen” problem, from an Australian perspective.
ADA News No. 72 - 19- February 15, 2000
ADA News No. 72 - 20- February 15, 2000
“ Hate Crimes Against People With Disabilities,” a paper by Mark Sherry, School of Social Work, University of Queensland, St Lucia 4064
This paper examines hate crimes perpetrated against people with disabilities. One of my major themes is that disabled people are often more vulnerable to abuse than non- disabled people. I outline some of the differences between hate crimes committed against people with disabilities and those committed against other members of the community. I explain why it is absolutely essential that disabled people share in the protection of hate crimes legislation and examine some ways of responding to hate crimes against people with disabilities.
In this paper, I will discuss the hate crimes experienced by disabled people. I will also outline some of the differences between hate crimes committed against people with disabilities and those committed against other members of the community. One of my major themes is that disabled people are often more likely to experience hate crimes than non- disabled people. I will explain why it is absolutely essential that disabled people share in the protection of hate crimes legislation. Finally, I will address the issue of how to respond to hate crimes against people with disabilities.
What is a Hate Crime?
I understand the term " hate crime" to mean a criminal act perpetrated against someone because of an actual or perceived trait that they possess. These traits may include ethnicity, race, gender, sexual orientation, religion or disability. Bodinger- De Uriate and Sancho suggest that the following characteristics may indicate that a hate crime has occurred:
- symbols or words associated with hate;
- activities historically associated with threats to certain groups
( e. g. burning crosses);
- jokes which are demeaning and offensive;
- destroying or defacing group symbols;
- a history of crimes against other members of the group;
- crimes occurring shortly after group activities or conflicts involving the group;
- the belief of the victim that the action was motivated by bias;
- perpetrators demeaning the victim's group and exalting their own
group;
- the presence of hate group literature; and
- previous hate crimes in the community.
U. S. legislation has only recently broadened its concept of hate crimes to include those committed against people with disabilities. The first American indictments for disability hate ADA News No. 72 - 21- February 15, 2000
crimes were issued in June this year. Associated Press reported that eight people were charged with kidnapping, harassment and conspiracy after an intellectually disabled man was tortured because of his disability (" New Jersey Charges 8 in landmark disabled Bias Case", June 8, 1999). He was invited to a party where he was taped to a chair, his eyebrows were shaved, he was burned with cigarettes, and he was choked and beaten before being abandoned in a forest. He had previously been attacked at two other parties.
The Forgotten Victims
In many ways, people with disabilities are the forgotten victims of hate crimes. As Oliver comments:
If able- bodied children were taken from their local school, sent to a foreign country, forced to undertake physical exercise for all their waking hours to the neglect of their academic education and social development, we would regard it as unacceptable and the children concerned would rapidly come to the attention of the child protection Mafia. But in the lives of disabled children ( and adults too), anything goes as long as you call it therapeutic …
The widespread failure to recognise hate crimes against disabled people may be related to the fact that violence towards disabled people is often considered acceptable. Indeed, a whole language has developed which differentiates violence against disabled people from other violence. Terms like " aversive treatment" are frequently applied to describe assaults on disabled people; " time out" is a phrase used to mean being locked in a dark room for days without human contact; and " neglect" can mean being tortured. Luckasson highlights the importance of language when it comes to crimes against people with a disability. He suggests that crimes against people with disabilities are often classed simply as " abuse" or " neglect" rather than naming them " crimes". Yet these forms of abuse can include hitting, violating someone's body, and torturing and killing a person. For any other member of the community, they would automatically be considered crimes.
Williams also makes this point very eloquently:
Women with learning disabilities are ' sexually abused' - other women are raped. Men with learning disabilities are ' physically abused' - other men are assaulted. Steal something from someone with learning disabilities and it is ' financial abuse', not theft … Offenders against the general community are criminals - those who victimise people with learning disabilities are ' abusers'.
It is probably not surprising then that Faces of Hate, a recent edition of articles on hate crimes in Australia edited by Cunneen, Fraser and Tomsen did not include any references to hate ADA News No. 72 - 22- February 15, 2000
crimes against disabled people. People with disabilities are often ignored when human rights issues are discussed. Our concerns are often unheard and unnoticed; our exclusion shows that we are extremely marginalised.
Despite a widespread failure to include disabled people in discussions of hate crimes, we are more likely to be abused than non- disabled people, and hate crimes against us are often chronic and severe. Wolbring comments that " disabled people are the highest risk group for abuse and violence and society isn't even aware of the problem". In an American survey conducted in 1995 and 1996, issues of violence and abuse were rated the number one priority by disabled women ( Berkeley Planning Associates). The survey found that women with disabilities not only experience physical, emotional and verbal abuse, but that they also may be denied essential medications, attendant services or access to assistive devices. Abusive carers included family members, paid staff and intimate partners.
Sobsey suggests that a disabled person is at least one and a half times more likely to be the victim of assault or abuse than other people of similar age and gender. Compared to nondisabled people of the same age and gender, disabled people typically experience more prolonged and severe abuse, with more serious effects. Indeed, Sobsey suggests that disabled people may be five times more likely to experience severe abuse and multiple victimizations. Sobsey's findings of incredibly high rates of abuse are consistent with Australian studies. For instance, the National Police Research Unit at Flinders University studied 174 people with an intellectual disability and found that they were 10 times more likely to have experienced abuse than non- disabled people ( cited in Llewelyn- Scorey, 1998). Chenoweth sees the over- prescription of psychotropic drugs and the sterilization of disabled women as symbols of insidious violence against disabled women.
It would be fair to say that silent acceptance of violence and abuse of disabled people is more common than activism against it. Hate crimes against people with disabilities are rife in the community, especially institutional settings. As Westcott comments, " Children and young people in institutional care can be rendered extremely powerless; this coupled with their isolation makes them easy victims for those wishing to abuse them". On the 28th of March 1993, the Sun- Herald published a story entitled " Hostel of Horror" which detailed more hate crimes experienced by disabled people. Under the heading " Residents Suffer Amid Killings, Sex Assaults", it alleged that two people in an NSW boarding house had died and many people had been physically, sexually and psychologically abused. It said that residents were often threatened with " the needle". Department of Community Services inspectors had recommended the closure of the institution for more than 20 years, but these recommendations had been ignored.
The involvement of the state in hate crimes against people with disabilities is a central feature of our experiences. Legal and bureaucratic systems have been deeply implicated in some of the worst cases of violence, abuse and hate crimes directed at disabled people. Sexual and ADA News No. 72 - 23- February 15, 2000
physical assaults have been commonplace in many state institutions. The Inquiry into the Basil Stafford Centre in Queensland ( 1995) found that many unlawful assaults had occurred at the Centre as well as gross neglect of clients. It also found an " insidious institutional culture" existed at the Centre which stifled and discouraged the reporting of abuse. Similarly, in 1991, the Victorian Community Visitors Board ( 1991) reported on the institutional abuse which disabled people have experienced. Crimes against disabled peoplewhich were uncovered include sexual assault, illegal restraint and seclusion, child abuse, battery, violation of legal rights, degradation, unusually high death rates, denial of medical treatment, chemical restraint, wrongful imprisonment and neglect. Again, in 1996, an inquiry by the New South Wales Government into residential care for intellectually and physically disabled people found an entrenched " culture of abuse" ( physical, emotional and sexual) in both public and private institutions ( Sydney Morning Herald 30 November 1996: 3). A failure to protect the most basic human rights and to provide safe residential services for disabled people was also found in a 1996 Inquiry into a fire in Melbourne which killed nine intellectually disabled men ( The Australian, 10 April 1996).
Sobsey comments that an abusive subculture sometimes dominates institutions such as group homes, hospitals and boarding houses. In this context abuse is encouraged and seen as normal. When investigations occur, cover- ups are commonplace. Power imbalances are maintained by the use of compliance training, drugs, locks, physical force, restraints and aversive therapy.
Why are so many disabled people victims of hate crimes?
Social, cultural, economic, physical and psychological factors all contribute to a climate in which disabled people become the victims of hate crimes. Such factors include:
- negative attitudes towards disability;
- the exclusion, isolation and poverty of disabled people and their
families;
- lack of supports, advocacy and safeguards;
- cultural support for violence;
- gender and power imbalances;
- the level of abuse in state institutions;
- negative attitudes towards various groups of people ( eg. women,
children, gays)
- the nature of the disability; and
- perceptions about the credibility of disabled victims.
Many disabled people are isolated from mainstream society. Our marginalisation and disempowerment contributes significantly to our victimisation. Negative attitudes towards disability have played a major role in making us more vulnerable to hate crimes. These negative attitudes ADA News No. 72 - 24- February 15, 2000
objectify, devalue and dehumanise us. When we are dehumanised, it is easier to justify segregating us in institutions, sterilising us against our will, forcing us to work for unacceptably low wages and committing crimes against us. In a climate of imposed hopelessness and disenfranchisement, hate crimes flourish.
Disabled people who require assistance with intimate care activities such as washing, dressing and using the toilet can be particularly susceptible to sexual abuse. Similarly, people can be trained to be complaint and made to feel that they have little control over what happens to their bodies. A woman with polio has described how professional interventions made her vulnerable to abuse by a hospital porter when she was a child:
What the doctors did, they lifted up my nightdress they poked her and they pushed her without asking me, without doing anything, but in front of a load of other people it was absolutely no different, I didn't say no to any doctor, the porter actually was to me doing absolutely nothing different at all that every doctor or nurses had ever done. ( Quoted in Westcott, 1994: 193)
Those who commit hate crimes against disabled people are often given lighter sentences than others who commit similar offences against nondisabled victims. This suggests that crimes against us are considered in some way less important. The belief that disabled people are less human than others, that we are damaged goods, devalues us and trivialises the hate crimes we experience. Let me give you some examples from Dick Sobsey's book Violence and Abuse in the Lives of People with
Disabilities ( 1994). When a 24 year old intellectually disabled man was tortured, forced to lick the toilet bowl and beaten to death by four people, the judge is reported to have said " the assaults were not serious". Another disabled man was buried alive in a box and killed by a carer whose only punishment was that he was prohibited from working as a carer for two years. He received no jail time. Similarly, a teacher chose not to report an incident where seven boys attacked and sexually assaulted a 13 year old disabled student in her own schoolyard. All these actions indicate that offences against disabled people are somehow less serious than offences against other community members.
Sobsey suggests that the four most common offenders against disabled people are disability service providers, acquaintances and neighbours, family members, and other disabled people. Approximately two- thirds of the people who abused someone with an intellectual disability met that person through a disability service. Sobsey concludes that " much off the excess risk of abuse experienced by people with disabilities may result from their exposure to the ( disability) service system".
Unfortunately, there is a tendency for people in positions of power to dismiss or ignore complaints of assault or abuse made by disabled people and to treat us as unreliable witnesses. ADA News No. 72 - 25- February 15, 2000
The Intellectual Disability Rights Service in Sydney has recorded some of the typical experiences of intellectually disabled people in this regard:
IDRS is often contacted by parents or staff who are distressed and confused by the non responsiveness of police and similar authorities when crimes have been reported. It appears that many police are reluctant to pursue allegations where the main witness is a person with an intellectual disability. It is recognised that police do and must have some discretion in determining what matters have sufficient prospects of success. However, it appears that some police have little if any appreciation of the capacities of people with an intellectual disability, and automatically assume they are unable to give evidence in court. As a result, many allegations are not even investigated.
Of course, intellectually disabled people are not the only disabled people whose complaints are automatically dismissed. I belong to a brain injury survivors group. One of my friends was the victim of a hate crime who faced similar prejudices from the police. He was violently attacked and pushed off the third story of a high- rise building. He fractured his
skill and received other serious injuries, but he had no witnesses. Police said that due to his head injury his memory must be considered unreliable and no charges were ever laid. He received no compensation for these injuries.
There are many Australian examples in the literature of lenient responses to hate crimes against people with disabilities. For instance, Judge reviews 13 cases where parents killed their children with disabilities. The crimes were committed through various means including shooting, poisoning, strangulation, drowning, burning and drug overdoses. In 11 of these 13 cases, the parent was not sentenced to jail. The fact that these crimes were committed by parents is not coincidental: many hate crimes are inflicted upon disabled people by family members, partners or carers who are employed to look after the welfare of the person. The greater the number of carers a disabled person has, the greater the risk of a hate crime being committed.
Responding to Hate Crimes
One of the typical responses to hate crimes is penalty enhancement. Hate crimes are seen to warrant harsher penalties because of the emotional harm they inflict on their victims, as well as their likelihood of promoting retaliatory crimes and inciting community unrest ( Levin, 1999). I agree that hate crimes legislation is important because it sends a message to offenders that hate crimes will not be tolerated.
But I feel that hate crimes legislation is only one element in creating safer communities. Other strategies must also be adopted which reduce the vulnerability of disabled people. These include a change in public attitudes towards disability, an end to segregation, improved service provider practices, and support for disabled people who are victims of hate crimes. ADA News No. 72 - 26- February 15, 2000
A Change in Attitudes Towards Disability
A change in attitudes is absolutely essential. This attitudinal change must start by acknowledging that human differences should be celebrated ( not shunned) and that everyone's dignity must be respected. Breaking down segregation, and in particular closing segregated institutions which have fostered abuse, is a key element in ensuring that disabled people are not at risk.
Improved Service Provider Practices
Westcott suggests a number of changes to service provider practices which may reduce the risk of abuse:
- Improved vetting procedures for employing staff so that convicted
paedophiles and abusers are unable to obtain work as residential care
staff or carers; and
- Staff training in recognising signs of possible abuse and responding to abuse. This would involve standard protocols for reporting abuse to the police and ensuring investigations occur quickly. Staff who report fellow workers should be supported by the service.
Domestic violence shelters can also improve their ability to address the needs of disabled clients. Some organisations have worked hard to provide accessible services, despite funding restraints, but shelters which accommodate the needs of disabled women are still rare. For instance, Nosek, Howland and Young suggest that many shelters and refuges are inaccessible, they lack interpreter services for deaf women, and they cannot accommodate women who need assistance with the activities of daily living or medications. Some women with disabilities, such as those with quadriplegia, have been referred to hospitals or institutions because of the lack of appropriate supports in shelters.
Support for Victims
People with disabilities who are the victims of hate crimes need support. Empowering disabled people to resist hate crimes is incredibly important in reducing the chances of further victimisation. Abuse prevention programs can improve personal safety skills and increase self- esteem and assertiveness. Supports, safeguards and advocacy need to be put in place so that people's rights are protected. Carers may need to be supported as well.
Conclusion
Disabled people are more likely than non- disabled people to experience hate crimes. And perpetrators are more likely to receive leniency in sentencing if the victim is a disabled person. So ADA News No. 72 - 27- February 15, 2000
hate crimes legislation is an important step in defending the rights of disabled people and ensuring that perpetrators receive appropriate punishment. But it is equally important to eliminate the systemic issues which create a climate in which such crimes can flourish, and to develop a system that enables appropriate responses for victims when hate crimes occur.
Bibliography
Associated Press " New Jersey Charges 8 in Landmark Disabled Bias Case",
June 8, 1999.
Berkeley Planning Associates " Service Needs of Women With Disabilities:
Disabled Women Rate Caregiver Abuse and Domestic Violence Number One Issue", http:// www. bpacal. com/ pressrel. htm.
Bodinger- De Uriate, C. and Sancho, A. ( 1990) Hate Crime, Los Alamitos,
CA, Southwest Center for Educational Equity.
Cocks, K. ( 1999) " Editorial", Queensland Advocacy Incorporated Newsletter July, p. 1.
Cunneen, C, Fraser, D. and Tomsen, S. ( 1997) Faces of Hate: Hate Crime
in Australia, Hawkins Press, Leichhardt.
Intellectual Disability Rights Service, ( 1991) Five Years of Rights: 1986- 1991: Further Up The Hill, Redfern Legal Centre, Redfern.
Judge, C. ( 1987) Civilization and Mental Retardation: A History of the Care and Treatment of Mentally Retarded People, Melbourne, Cliff Judge.
Levin, B. ( 1999) " Hate Crimes: Worse By Definition", Journal of Contemporary Criminal Justice, Vol. 15, No. 1, February, pp. 6- 21.
Llewelyn- Scorey, C. ( 1998) Protection from Sexual Abuse: A Statement of Current Responsibilities, Disability Operations, Department of Families, Youth and Community Care, Brisbane.
Luckasson, R. ( 1992) " People with Mental Retardation as Victims of Crime" in Conley, R. W., Luckasson, R. and Bouthilet, G. N. ( eds) The Criminal Justice System and Mental Retardation, Paul H. Brookes, Baltimore.
Nosek, M. A., Howland, C. A. and Young, M. E. ( 1998) " Abuse of Women with Disabilities: Policy Implications", Journal of Disability Policy Studies, 8 ( 1,2), pp. 158- 175.
Sobsey, D. ( 1992) Violence and Abuse in the Lives of People with Disabilities, Paul H. Brookes, Baltimore.
Stewart, D. G. ( 1995) Report of an Inquiry conducted by the Honourable D G Stewart into Allegations of Official Misconduct at the Basil Stafford Centre, Brisbane.
Westcott, H. ( 1994) " Abuse of Children and Adults who are Disabled" in French, S ( ed) On Equal Terms: Working With Disabled People, Butterworth Heinemann, Oxford, pp. 190- 206.
Williams, C. ( 1995) Invisible Victims: Crime and Abuse Against People With Learning Disabilities, Jessica Kingsley, London.
Wolbring, G. ( 1994) " Violence and Abuse in the Lives of People With Disabilities" http:// www. thalidomide. ca/ gwolbring/ violence. htm.
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" News Reviews to Peruse"
Number 73 March 15, 2000
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). Current and past issues of this publication are archived at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP Intranet website.
SUPREME COURT WILL NOT REVIEW ADA’S CONSTITUTIONALITY THIS TERM - With two cases on the docket and a third pending, it looked very likely that the U. S. Supreme Court would review this term cases presenting the question whether the ADA is constitutional as it is applied to states, in the wake of the Court’s landmark decision in Kimel v. Florida. ( See “ ADA News” No. 71, 1/ 15/ 00, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 71. htm.) Now with the cases coming off the Court’s docket, that question will probably have to wait for next term. The cases that were scheduled to be reviewed in April - Alsbrook v. Arkansas, et al. ( see “ ADA News” No. ADA News No. 73 - 30- March 15, 2000
67, 9/ 15/ 99, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 67. htm) and Florida v. Dickson ( see “ ADA News” No. 49, 3/ 15/ 98, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 49. htm) - in which the Court could have decided that state employees are not covered by the ADA, were dismissed by the Court, which cited a rule usually employed in cases that settle before they are heard. The Baltimore Sun reported last week that disability- rights activists are seeking to avoid court rulings they fear would shield states from ADA lawsuits. Apparently, Dickson settled when the State of Florida agreed to pay him the amount he was seeking. In Alsbrook, the State of Arkansas, which won in the Appeals Court, was easily convinced to accept the decision of the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) by disability- rights advocates concerned about the Supreme Court’s potential ruling.
SENIORITY TRUMPS ACCOMMODATION - NINTH CIRCUIT - The ADA does not require an employer to bypass its seniority system to grant an employee a reasonable accommodation, such as a transfer to a vacant job, a divided U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) ruled October 28, 1999. Finding that the ADA and its legislative history are “ ambiguous” about the effect of seniority systems, the Court said, “ In the face of this ambiguity, we are persuaded by well- reasoned opinions from other circuits … that the ADA does not require an employer to give disabled employees preference over nondisabled employees in hiring and reassignment decisions.” The ruling amends a one- year- old opinion granting summary judgment to US Air Inc. on ADA claims by a cargo handler. He argued that the airline violated the ADA by refusing to grant an exception to its seniority system that would allow him to work in the mail room to accommodate his lifting and movement restrictions. In its October 1998 decision, the Court declined to resolve a disparity between the Rehabilitation Act and the ADA’s treatment of seniority systems. ( See “ ADA News” No. 56, 10/ 15/ 98, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 56. htm.) “ Given the uncertainties within the statute and its legislative record, we decline to adopt either a ‘ per se’ or ‘ case- by- case’ standard in this case,” Judge Charles Wiggins wrote in the 1998 opinion, finding that US Air was not bound to violate its seniority system under either standard. In its amended order, the Court said it agrees with the Second, Fifth, Seventh, Eighth, and Eleventh circuits, which “ have interpreted the ADA as requiring no more than equality among disabled and nondisabled employees in hiring and reassignment decisions.” Because the cargo handler’s requested accommodation would have violated his employer’s seniority system, it is unreasonable, the Court concluded. Barnett v. US Air Inc., CA9, No. 96- 16669, amended 10/ 28/ 99 ( http:// www. ce9. uscourts. gov/ web/ newopinions. nsf/ f606ac175e010d64882566eb00658118/ ae7a2087a8b429268825681800694b96? OpenDocument).
CHALLENGE READIED OVER OSHA RULE - Last month, I reported on a new rule from the Occupational Safety and Health Administration aimed at reducing repetitive- stress and musculoskeletal injuries. Businesses are gearing up to challenge the rule. Under the rule proposed November 23rd, about 1.9 million employers could have to hire trainers and pay wages ADA News No. 73 - 31- March 15, 2000
and benefits during convalescence for repetitive- stress injuries. Business groups are expected to ask the U. S. Court of Appeals for the District of Columbia Circuit, which has jurisdiction over any challenge, to reject the proposals once they are final. The coalition, including the U. S. Chamber of Commerce and the National Association of Manufacturers, also may ask the Court to stay the rules during any review. “ Unless OSHA sits down and works out something that is palatable to industry, this is doomed to failure,” predicts Dennis Morikawa, a partner in the Philadelphia office of Morgan, Lewis & Bockius L. L. P. U. S. Labor Secretary Alexis M. Herman says that such injuries are the most “ prevalent, expensive and preventable workplace injuries.” OSHA predicted that the rule would cost employers about $ 4.2 billion a year, but the Small Business Administration estimates costs closer to $ 18 billion. Under the rule, employers would have to adopt an ergonomics program even if only one employee complained of a work- related repetitive- stress injury, and provide sidelined workers up to 100% of their pay and benefits. http:// www. osha- slc. gov/ ergonomics- standard/ index. html
YANKEES SUED OVER STADIUM ACCESSIBILITY - Once a plaintiff in an action brought under Title III of the ADA shows that removing barriers to access for those with disabilities can be “ readily achieved,” it is up to the defendant to prove otherwise, a Southern District of New York judge has ruled. Judge Shira A. Scheindlin clarified the pleading standard under the ADA at the request of the New York Yankees and four plaintiffs who sued over access at Yankee Stadium. The suit charged that the team has failed to provide accessible wheelchair seating, remove barriers to access such as stairs and railings, and give patrons with disabilities the same lines of sight and range of admission prices available to the general public. The Yankees currently provide about 60 accessible seats in two areas at the stadium. Under the judge’s interpretation of the ADA, the plaintiffs will have the “ initial burden of suggesting a method of barrier removal and proffering evidence that their suggested method meets the statutory definition of ‘ readily achievable.’ Once they meet this burden, she said, “ the Yankees then bear the ultimate burden of proving that the suggested method of removal is not readily achievable.” Pascuiti v. New York Yankees, 98 Civ. 8186.
UNIVERSITY SETTLES PROFESSOR'S ADA CLAIMS - The University of Michigan has agreed to limit its use of second medical opinions for faculty members who request accommodations under the ADA, and to review its faculty removal procedures under a settlement with a professor who sued the school. Under terms of the settlement, the professor also will be assigned a teaching assistant, the accommodation the university originally denied, and will not be required to teach during the winter terms when weather limits her mobility. The professor sought the accommodation in January 1995 because of a back impairment that requires her to use a walker. After her impairment forced her to cancel some classes in the winter of 1995, the university placed her on paid leave. The school declined her accommodation request for a teaching assistant because enrollment in her classes did not meet minimum requirements for an assistant. The University later reinstated the professor, but only after requiring a second medical opinion from a university doctor. The university’s medical exam included testing of her back impairment ADA News No. 73 - 32- March 15, 2000
and a neuropsychological test to determine her recovery from brain damage that had occurred during back surgery in the early 1990s. Under the agreement, the school will make significant changes to its procedures for requiring medical exams for workers and its emergency faculty member removal process. The agreement restricts university- mandated medical exams for employees and job applicants; specifically, the school agreed that when an ADA accommodation is requested, it will not require a second medical opinion without first giving the employee or applicant a chance to produce documentation from his or her own physician. If the school questions the request, the university must provide notice to the person or applicant and an opportunity for their personal physician to respond. Cloyd v. University of Michigan, E. D. Mich., No. 97- 60402, settlement filed 11/ 16/ 99.
ADAPT VIGIL PROTESTS DC DEATHS - On December 8, 1999, sixty to seventy members of Capital Area ADAPT ( American Disabled for Attendant Programs Today) held a candlelight vigil outside the office of Washington Mayor Anthony Williams to protest the deaths of 116 persons with mental retardation in Washington, D. C. contract group homes funded by the District. Justin Dart, preeminent disabilities rights advocate and one of the organizers of the event, explained the purpose of the gathering: “ Each human life is sacred. All human beings have an absolute right to achieve their full potential for lives of quality and dignity in manners of their own choosing. … In the richest nation the history of the world there is absolutely no excuse for human beings to be forced to exist and to die in subhuman conditions. … We respectfully demand that the Mayor, the Congress and the President initiate serious investigations and serious solutions now. We respectfully demand that the Mayor, the Congress and the President support laws and programs like MiCASSA that will give every person the means to choose where and how they will live.” ( See “ ADA News” No. 70, 12/ 15/ 99, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 70. htm, for information on MiCASSA, the “ Medicaid Community Attendant Services and Supports Act,” Senate Bill S. 1935.) According to the demonstrators, abuse and neglect in the contract homes has been covered up and records destroyed, and District officials have participated in the cover- up. The deaths came to light in an expose that appeared in the Washington Post. http:// www. adapt. org/
ADA News No. 73 - 33- March 15, 2000
NEW LEADERSHIP FOR AAPD - Andrew J. Imparato, prominent disability rights leader and an expert on the ADA, has joined the national office of the American Association of People with Disabilities ( AAPD) as its new President and CEO. AAPD, the nation’s largest disability membership organization, was founded in 1995 to represent, educate and unify interests of the entire diverse disability community. The goals of the organization are to promote the economic and political empowerment of all people with disabilities, educate business and the general public about disability concerns, and provide benefits such as insurance, credit cards and legal and financial advice to members. For the past two years, Imparato has been general counsel to the National Council on Disability, specializing in the development and implementation of national and international disability civil rights policy. He is best known within the disability community as an advocate and advisor to leaders in the EEOC and Senate, particularly Senator Tom Harkin of Iowa, around ADA enforcement, health care reform, IDEA reauthorization, income support and technology access. “ Andy Imparato is symbolic of the future for Americans with disabilities,” said Justin Dart, a founding member of AAPD. Imparato distinguished himself as a Skadden Fellow at the Disability Law Center in Boston before coming to Washington, DC. He graduated with distinction from Stanford Law School and is a summa cum laude graduate of Yale College. http:// aapd- dc. org/
DISABILITIES WEBSITE OF THE MONTH - The Arc ( formerly the Association for Retarded Citizens of the United States) is the country’s largest voluntary organization committed to the welfare of children and adults with mental retardation and their families. The Arc, which represents over seven million children and adults with mental retardation and their families, has over 140,000 members in approximately 1,000 state and local chapters nationwide. The Arc is a charitable non- profit organization supported by contributions from the public. With a rich history in advocacy and services, The Arc is comprised of individuals with mental retardation, family members, professionals in the field of disability and other concerned citizens. The Arc has adopted various positions on issues that affect people with mental retardation and their families. The organization’s mission statement forms the basis for the organization’s activities: “ People with mental retardation are citizens with the same rights and responsibilities as other citizens. They have the right to life, liberty, the pursuit of happiness and equal treatment under the law. People with mental retardation have the right to services and supports that meet their individual preferences and needs.” Visit The Arc at http:// thearc. org/.
DOJ REACHES AGREEMENT WITH DAYS INN - Days Inn of America, Inc. ( DIA) the world’s largest hotel chain, and its parent company, Cendant Corporation, have agreed to implement a nationwide initiative designed to make hundreds of its new hotels across the country more accessible to persons with disabilities, under an agreement reached with the U. S. Department of Justice. The agreement, filed in U. S. District Court in Pikeville, Kentucky, resolves five lawsuits filed by the Justice Department in 1996. The suits alleged that DIA and Cendant violated the ADA by constructing new Days Inn hotels that denied equal access to persons with disabilities. “ We are pleased that Days Inns will initiate a program to make its recently- built hotels across the ADA News No. 73 - 34- March 15, 2000
country accessible,” said Attorney General Janet Reno. “ I hope that other hotels and hotel franchises follow Days Inns’ example and implement systemwide changes to make each of their facilities fully accessible to persons with disabilities.” Under the agreement, DIA will require new hotels to certify that they are in compliance with ADA standards before they open for business as Days Inns, pay for an independent survey program designed to identify ADA problems at newly constructed hotels, establish a $ 4.75 million revolving fund to provide interest- free loans to franchisees of newly constructed hotels to finance repairs and renovations required for ADA compliance, and pay $ 50,000 to the United States. The Attorney General Reno’s announcement can be found on the DOJ website at http:// www. usdoj. gov/ ag/ speeches/ 1999/ dec299. htm. Three new DOJ documents designed to assist hotel owners, architects and contractors are also available at http:// www. usdoj. gov/ crt/ ada/ adahom1. htm.
COMBINED IMPAIRMENTS MAY EQUAL DISABILITY - The U. S. District Court for the Eastern District of Pennsylvania has found that the combination of a woman’s impairments, and the limitations they together impose on a major life activity, are sufficient to survive a defendant’s motion to dismiss her ADA lawsuit. The plaintiff, a fabrication technician with diabetes, cirrhosis of the liver and chronic kidney dysfunction, alleged that these illnesses limited her ability to stand for extended periods. She stated that she had asked her employer several times for a reasonable accommodation - either to work sitting down, or for occasional breaks to relieve swelling in her legs - and was denied. She also stated that her supervisors taunted and berated her about her disability in front of other employees. The court found that standing is a major life activity, and that the technician had sufficiently alleged that she is a qualified person with a disability because of the combined effects of her impairments on her ability to stand for extended periods. The court dismissed the technician’s ADA claim of retaliation against her supervisors, denied a defendants’ motion to dismiss a retaliation claim against the employer, and denied a motion to dismiss retaliation claims against the employer and the supervisors brought under the Pennsylvania Human Relations Act. Heimbach v. Lehigh Valley Plastics, Inc., No. CA/ 99- 2979, USDC EDPa., 1/ 5/ 00 ( http:// www. paed. uscourts. gov/ opinions/ 00D0021P. HTM).
SUPREME COURT ALLOWS RULING TO STAND - The U. S. Supreme Court in December let stand an appeals court ruling affirming a jury’s finding that the Washington Metropolitan Area Transit Authority violated the ADA when it fired a subway police officer with spina bifida. The U. S. Court of Appeals for the District of Columbia Circuit said a reasonable jury could decide that WMATA’s proffered reason for firing the officer - expiration of his special police commission license - was a pretext for discrimination. According to the D. C. Circuit, the officer took a few unscheduled absences as a result of his condition. After receiving a warning that more unscheduled absences could lead to disciplinary action, the officer provided WMATA with letters from his doctor detailing his symptoms, which included many of the reasons that he had provided for taking sick leave, such as fever, vomiting, diarrhea, nausea, frequent urination, and lower back pain, the Court said. In 1992, the officer’s requests for accommodations were denied, and his supervisor told him that his best option was to resign. He was terminated in September 1992, ADA News No. 73 - 35- March 15, 2000
purportedly because he had allowed his commission to expire, though the officer’s wife was told that he was fired because of his absences. The D. C. Circuit rejected WMATA’s contention that the commission was a requirement of the job, and noted that WMATA’s personnel description for the special police officer job stated that an individual only had to have the ability to obtain and maintain a commission. In addition, official WMATA policy did not provide for automatic discharge on expiration of the commission, the Court pointed out; instead, the policy provided that the officer would not be able to work until the commission was renewed. In its petition for Supreme Court review, WMATA contended that the D. C. Circuit’s opinion was inconsistent with the Supreme Court’s rulings in Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertson’s v. Kirkingburg. WMATA also asserted that the High Court should resolve a split in the circuits regarding whether “ state- level sovereign entities such as WMATA” are immune from suit under the ADA. Washington Metropolitan Area Transit Authority v. Swanks, U. S., No. 99- 461, cert. denied 12/ 13/ 99, Swanks v. WMATA, 179 F. 3d 929 ( D. C. Cir. 1999) ( http:// www. ll. georgetown. edu/ Fed- Ct/ Circuit/ dc/ opinions/ 98- 7115a. html).
CITY OF DAYTON SUED FOR DISCRIMINATION - On December 14, 1999, twelve individuals with disabilities filed a class action lawsuit in federal court, alleging that the City of Dayton, Ohio engaged in a pattern of discrimination against them and others in violation of the ADA. Specifically, the lawsuit alleged that after the ADA became effective in 1992, Dayton resurfaced streets and rebuilt sidewalks but failed to install wheelchair ramps at the resurfaced intersections, as the ADA requires. It also alleges that even when the City did install curb ramps, the ramps violated construction standards under the ADA. “ Resurfacing streets gives the perfect opportunity to install wheelchair ramps at intersections with sidewalks,” said Roy Poston, one of the plaintiffs. “ When businesses and employers build wheelchair accessible buildings and workplaces, Dayton should at least ensure that we can travel across the City’s streets and sidewalks.” The lawsuit seeks to
force Dayton to install required wheelchair ramps on any future construction, and to retrofit all intersections resurfaced after 1992 with ADA compliant wheelchair ramps. The plaintiffs also asked the Court to order Dayton to repair improperly installed ramps. “ Many of the ramps installed by the City are too steep, or have large lips where the sidewalk meets the street,” said Melody Burba, another plaintiff. “ It’s a complete waste of money to build improper ramps, and its dangerous to us and others who try to use these defective ramps.” “ We invite the City of Dayton to meet with us to discuss a just resolution of this matter,” said plaintiffs’ attorney, Denise Heberle. According to Heberle, Columbus entered into a Court Order earlier this year to settle a similar lawsuit, and is currently installing hundreds of new curb ramps. In another case in Toledo, a federal judge has repeatedly ruled against the City, ruling that Toledo has engaged in a continuing violation of the ADA, and ordering Toledo to repair deficient curb ramps.
SUMMARY JUDGMENT REVERSED FOR EMPLOYEE WHO COULD NOT DRIVE TO WORK - An administrative assistant with vertigo and Meniere’s disease failed to prove that Howard University violated the ADA by failing to accommodate her inability to drive to work, the U. S. Court ADA News No. 73 - 36- March 15, 2000
of Appeals for the District of Columbia Circuit ruled December 14, 1999. Granting the assistant summary judgment, the district court had found that she was a qualified individual with a disability and that providing the requested schedule change would not have been an undue hardship for the university. Driving was not one of plaintiff’s job duties, Appellate Judge David B. Sentelle observed in reversing the decision. “[ S] he only requested the revised schedule so that she could car pool with her son and husband at times convenient to them, rather than find some other means of getting to work or prevail upon her family to make the change in commuting schedule necessary to accommodate her,” he wrote. The Appeals Court reversed summary judgment for the assistant and ordered the U. S. District Court for the District of Columbia to grant summary judgment to Howard. According to the opinion, the assistant initially requested an adjusted work schedule to enable her to car pool with family members, but when she later submitted medical documentation of her condition, she only requested medical leave, which the university granted. She argued that she only requested medical leave because Howard refused her request for an adjusted schedule, but Judge Sentelle found no evidence to support that allegation. Calling her argument “ questionable,” Sentelle found it unnecessary to decide whether driving is a major life activity and whether an employer’s accommodation obligation extends to helping a qualified disabled person get to work. He decided that the assistant failed to establish that she had even requested an accommodation that Howard denied. “[ E] ven reading all submitted evidence in the light most favorable for [ the plaintiff], no reasonable jury could find that Howard denied her a reasonable accommodation after she provided documentation substantiating her need for one,” Sentelle concluded. Flemmings v. Howard University, D. C. Cir., No. 99- 7046, 12/ 14/ 99 ( http:// www. ll. georgetown. edu/ Fed- Ct/ Circuit/ dc/ opinions/ 99- 7046a. html).
INDIVIDUAL IMMUNE FROM SECTION 1983 DISABILITIES BIAS CLAIMS - A public employee cannot avoid the Rehabilitation Act’s ban on suits against individuals by suing her supervisor under the general provisions of the Civil Rights Act of 1871 ( 42 U. S. Code 1983) and the employing public agency under the more substantive disabilities discrimination statutes, the U. S. Court of Appeals for the Fifth Circuit ( TX, LA, MS) held in an issue of first impression December 6, 1999. Allowing such a suit “ would provide the plaintiff with two bites at precisely the same apple,” Judge Jolly writes. “ We conclude that a plaintiff may not maintain a section 1983 action in lieu of - or in addition to - a Rehabilitation Act or ADA cause of action if the only alleged deprivation is of the employee’s rights created by the Rehabilitation Act and the ADA,” the Court concluded. Lollar v. Baker, CA5, No. 98- 60585, 12/ 6/ 99 ( http:// ca5web. ca5. uscourts. gov: 8081/ ISYSquery/ IRL1EAA. tmp/ 1/ doc).
PEOPLE WITH DISABILITIES NEW CONSUMER TARGET? - “ Handicapitalism” - that is the term a recent article in the Wall Street Journal used to describe “ what’s behind a dawning realization in business: People with disabilities shouldn’t be viewed as charity cases or regulatory burdens, but rather as profitable marketing targets.” And according to the article, “ mainstream companies, from financial services to cell- phone makers, are going beyond what’s mandated by law and rapidly tailoring products to attract them.” More and more companies are raising their ADA News No. 73 - 37- March 15, 2000
profiles among people with disabilities and forming in- house “ disability teams.” Responsible in no small part for this awakening is the passage last year of the Work Incentives Improvement Act, which should make it easier for persons with disabilities to move into the workforce. Federal accessibility regulation is also responsible, especially among computer and communications companies. “ If this were charity, I wouldn’t bother,” says Cary Fields, president and chief executive officer of “ wemedia,” whose corporate partners include HotJobs. com Ltd., a job- search site. “ These people are here,” he adds. “ If you want their money, go deal with them.”
ON- THE- JOB INJURIES, ILLNESSES FALL TO LOWEST RATE ON RECORD - The Bureau of Labor Statistics has released statistics on workplace injuries and illnesses in 1998. The report shows total injury and illness cases in 1998 reported by employers dropped 4 percent, with the rate declining from 7.1 cases per 100 full- time workers in 1997 to 6.7 in 1998. The 1998 rate was the lowest since the bureau began reporting injury and illness data based on employer surveys in the early 1970s, and continues a six- year trend of declining rates. The overall private industry rate of 6.7 per 100 workers represents a continuing decline, from 8.4 per 100 full- time workers in 1994 and from the high of 11.0 per 100 workers reported in 1973. http:// www. bls. gov/ news. release/ osh. toc. htm
BERKS STUDENT WITH DOWN’S SUES TO PLAY BASKETBALL - A 16- year- old Berks County, Pa. student with Down’s syndrome is suing Governor Mifflin High School to be allowed to play on the J. V. basketball team, claiming he was excluded from the team because of his disability. The student played interscholastic basketball on the 7th, 8th and 9th grade teams. No other players were cut from the J. V. and there are only 13 players on the 15 person squad, according to the suit. The only reason he was cut from the J. V. team according to his mother, was his disability. “ It was good for him to be part of the team and to practice with them, even though he got to play in only a few games,” his mother said. “ This year he has been very upset that they are not allowing him to be with the team. Since he would not take another player’s spot on the team, you would think they could make a little effort to include him in the program.” Mike Zuber, who was the Governor Mifflin varsity coach for 13 years, encouraged Matthew to play and has said that he offers other players a chance to appreciate their own opportunities. “ He will never be a great player, but it is good for everyone - players, coaches and fans - when he participates,” Zuber said. In one game last year Matthew scored a three point shot. The student attended tryout practices beginning November 8, 1999, and the coach cut him on November 23rd. This year’s basketball coach, who is new to the District, told Matthew’s parents he was cut because he didn’t have good enough skills, though no other players were cut from the junior varsity. The School Board affirmed the decision. The ADA and Section 504 of the Rehabilitation Act prohibit school districts receiving federal money from discriminating on account of disabilities.
LAWSUIT CLAIMS CROWDED AISLES AT FEDERATED STORES - Activists for persons with disabilities are targeting the nation’s leading department- store chain, charging that Federated Department Stores Inc. is increasing its selling space at the expense of space for wheelchairs. ADA News No. 73 - 38- March 15, 2000
“ They’re not the only ones, but they’re public enemy number one when it comes to access for the disabled,” said Larry Paradis, a lawyer at Disability Rights Advocates in San Francisco, one of the organizations leading the fight. Federated, the Cincinnati- based owner of such stores
as Bloomingdale’s and Macy’s, has crowded its aisles with more of its sweaters, coats and dresses, largely to stave off competition from specialty stores and discounters. Because that often leaves no room for a wheelchair to pass, Federated has become the prime target for the disability- rights activists, who claim the retailer is violating the ADA. Disability- rights activists filed a lawsuit in December in U. S. District Court in the Southern District of Florida charging Macy’s East, a Federated division, with violating the law. That came on the heels of two similar lawsuits against two other Federated divisions, Macy’s West and Burdines, filed in federal courts in California and Florida. ( See “ ADA News” No. 53, 7/ 15/ 98 ( http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 53. htm.) While Federated won’t comment on the specific lawsuits, it defends aisle- cramming as a necessary business practice in an age of increased competition. “ Our way of doing business is to be promotional, and we have to have a lot of merchandise in the store to do that,” says Federated spokeswoman Carol Sanger. The battle highlights the tension between government efforts to ensure access and store owners struggling to compete in a crowded marketplace. It also underscores the fact that nearly a decade after the ADA was signed into law, many shopping outlets remain unnavigable mazes for people in wheelchairs. So, how wide are the aisles in your customer service areas?
FEDERAL JUDGE ORDER PRISON CHANGES - A federal judge found “ shocking” disregard by California parole authorities for the needs of inmates with disabilities and ordered the state’s parole board to make sweeping changes in a decision issued in December. Under the judge’s order, the Board of Prison Terms, as the parole board is formally known, must identify all prisoners and parolees with disabilities and then provide accessible hearing rooms, sign language interpreters or whatever else they are entitled to under the ADA. The board must also stop its practice of denying parole on grounds that prisoners have not participated in programs that they cannot handle because of their disabilities, the order by U. S. District Judge Claudia Wilken said. Wilken’s injunction also ordered the board to hire at least one full- time ADA coordinator for at least a year. The decision recounted abuses Wilken heard about during a month- long trial last spring, including forcing inmates unable to walk to crawl up stairs to parole hearings, shackling the arms of inmates who could communicate at hearings only by using sign language and requiring “ mentally retarded” prisoners to sign documents they were incapable of reading. Calling the evidence “ overwhelming” and “ uncontradicted,” she said she was “ shocked to find that these things occurred with such frequency.” “ More shocking,” she said, “ was the level of indifference to the basic rights of prisoners with these disabilities that the Board of Prison Terms defendants exhibited.” The class- action lawsuit was filed by the nonprofit Prison Law Office, the Disability Rights Education and
Defense Fund and a team of private lawyers, naming the state Department of Corrections as well as the parole board among the original defendants.
ADA News No. 73 - 39- March 15, 2000
ACLU SUES ARKANSAS JUDGE - The American Civil Liberties Union of Arkansas has filed a class- action lawsuit against a county judge on behalf of a man who could not attend court proceedings because he uses a wheelchair. ACLU of Arkansas volunteer attorney Luther Sutter said that the defendant, Lonoke County Judge Carol Beavis, has “ acted, failed to act, or refused to act” on behalf of people with disabilities wishing to access the courthouse, in violation of the ADA. “ The courthouse, a place where the people engage in serious business, should be accessible to all of the people,” said ACLU of Arkansas Executive Director Rita Sklar. In April 1999, the man was unable to attend court proceedings on an upper floor accessible only via several staircases; instead he waited six hours downstairs. The only accommodation made was an offer to be carried upstairs by several jail inmates, which he declined. The ACLU cited the lack of accessibility at the courthouse; lack of availability of accessible parking; the defendant’s failure to provide program access; path- of- travel barriers to and/ or within the courthouse facilities; and lack of required rest rooms at the courthouse. The ACLU is asking Judge Beavis, to “ develop, implement, and complete a proper transition plan within a reasonable time in accordance with the ADA to provide program access and make those changes required under federal law.” In a similar case, the ACLU of Georgia has also filed a lawsuit on behalf of a woman who was denied the right to serve on a jury because she uses a wheelchair.
FEDERAL OFFICE OF DISABILITY POLICY PROPOSED - In its second annual report, the Presidential Task Force on the Employment of Adults with Disabilities has recommended the creation of a federal office of disability policy within the Labor Department. The Presidential Task Force was created by a 1998 executive order, and consists of the heads of 12 agencies, including Secretary of Health and Human Services Donna Shalala, Secretary of Transportation Rodney Slater, and Federal Communications Commission Chairman William E. Kennard. The report recommends that the proposed federal Office of Disability Policy, Evaluation and Technical Assistance be headed by an assistant secretary of labor, and include responsibility for integrating people with disabilities into the Labor Department’s mainstream employment and training programs and implementing a long- term national employment strategy for people with disabilities. The task force report also recommended that: the Departments of Justice and Labor collaborate with the Equal Employment Opportunity Commission in exploring ways to strengthen enforcement of the ADA and Rehabilitation Act by, among other things, disseminating technical assistance guides and educational tools for employers and people with disabilities; the President continue to work with Congress to accelerate the development and adoption of information and communication technologies that can be used by people with disabilities; the President and Congress continue to work for passage of a tax credit that would assist adults with disabilities with expenses related to work; the President and Congress continue to work for passage of a Patients’ Bill of Rights; the Social Security Administration and the Labor Department create a World Wide Web site to provide information and services offered by government agencies to people with disabilities; and that the Social Security Administration explore options for raising the Earned Income Exclusion in the Supplemental Security Income program to encourage adults and students to work. Copies of the report, “ Re- Charting the Course: If Not Now, When?”, are ADA News No. 73 - 40- March 15, 2000
available from the Presidential Task Force on Employment of Adults with Disabilities by calling ( 202) 693- 4939 ( voice) or ( 202) 693- 4290 ( TTY), or at the task force website found at http:// www. dol. gov/ dol/_ sec/ public/ programs/ ptfead/ ifnotnow. htm.
PARKING PERMIT CHARGE IS DISCRIMINATORY - Charging persons with disabilities a fee for permits to park in reserved spaces violates the ADA, according to a decision by the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) in a case involving a city of Honolulu, Hawaii ordinance. The city charged ten dollars for “ identification cards” that entitled people with disabilities to parking placards and special license plates, allowing them to park in designated parking stalls. A federal trial judge decided the city could collect an amount equivalent to the administrative cost of issuing the permits, but was enjoined from collecting any fees until the cost of the permits was determined. The plaintiff appealed the decision, seeking injunctive relief against any parking fee. In an unpublished opinion, the Appellate Court reversed, finding that any charge was an impermissible surcharge under the ADA. The Court cited its earlier published decision in Dare v. California, 191 F. 3d 1167 ( 9th Cir. 1999)( http:// www. ce9. uscourts. gov/ web/ newopinions. nsf/ f606ac175e010d64882566eb00658118/ a7f4a5be110d3d9e882567ee00608172? OpenDocument), in which the Court also upheld the constitutionality of the ADA as it is applied to the State of California. “ We felt the entire amount was a surcharge because disabled people pay taxes just like anybody else and this amount - whether it's $ 3, $ 5, or $ 10 - is charged only to people with disabilities,” said an attorney for the plaintiff.
TRAINING OPPORTUNITIES - The ADA Information Center in conjunction with the District of Columbia ADA Coordinator’s Office is offering a variety of training courses to be held in Washington, DC. Courses yet to be held include:
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How to be a Better ADA Trainer - March 16, 2000
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Diversity and Disability in the Workplace, Day 1 - April 20, 2000
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Diversity and Disability in the Workplace, Day 2 - May 18, 2000
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ADA 101: A Basic Primer on the ADA - June 15, 2000
Also provided by ADAIC is “ Effective Communication,” a teleconference on March 21st offered as part of the ADAIC’s “ Distance Learning 2000 Program.”
For more information on these and other courses, and to register yourself or others, contact Marian Vessels, Director, ADA Information ADA News No. 73 - 41- March 15, 2000
Center for the Mid- Atlantic Region, at 800- 949- 4232 V/ TTY, E- mail: mvessels@ transcen. org, fax at 301- 217- 0124, or through the ADAIC website at http:// www. adainfo. org/ index. html.
U. S., U. K. NOW MORE RECEPTIVE TO WORKING PEOPLE WITH DISABILITIES - People with disabilities - one in six of us - must surmount workplace obstacles that most of those without disabilities never even notice, everything from inaccessible work spaces to indifferent, or even intolerant, colleagues. The picture is beginning to improve, however, according to a survey performed by Cornell University. The Program on Employment and Disability at Cornell University’s School of Industrial and Labor Relations undertook the study of 2,000 U. S. and U. K. human resource professionals to determine their response to disability laws and to identify ways to eliminate workplace discrimination against people with disabilities. The survey showed that organizations in the United States and the United Kingdom have done a lot of training of their HR professionals in the new laws; that many U. S. and U. K. companies have become more flexible in their policies toward hiring employees with disabilities and have made their facilities more accessible; and that most of the HR professionals surveyed on both sides of the Atlantic saw the cost of training, supervising and accommodating employees with disabilities as less of a problem than combating negative attitudes toward them among co- workers and supervisors.
REVIEW BOARD RULES AGAINST OFCCP - A production line employee with epilepsy, who had five seizures at work during her five months of employment with Keebler Company, was not a qualified employee with a disability entitled to protection under Section 503 of the Rehabilitation Act, the Labor Department’s Administrative Review Board ( ARB) decided, ruling against the Office of Federal Contract Compliance Programs. The ARB found that Keebler was justified in firing the employee because her seizures impaired her ability to perform her work safely, and continuing to employ her would pose a “ reasonable probability of substantial harm.” The employee’s job as a production attendant involved packaging snack foods where she was exposed to hazards in performing her work, according to the ARB, including working near moving conveyor systems that could pull fingers, hands, or even hair into “ in- going nip points” and working with hot glue that could reach a temperature of 350 degrees. In addition, there was heavy tow motor traffic in the packaging area, and a high- noise level made it difficult for workers to hear one another or to distinguish warning shouts or horns from general background noise. At a post- termination administrative hearing, co- workers described five incidents during which the employee experienced seizures and appeared unaware of her surroundings, including one occasion when her supervisor found her standing near the packing station, appearing “ extremely pale” and with a “ really blank expression” while “ bags of product fell steadily to the floor.” Another time, a manager found her “ frozen” at the conveyor belt with 50 or 60 bags of snacks on the floor around her, coming off the conveyor at a rate of “ 30 to 35 bags a minute.” A specialist in occupational medicine testified that in his opinion the hazards facing the employee were “ considerable to the extent that it was probable that she would sustain a significant injury at that plant.” The ARB found that a preponderance of the evidence showed that she understated the seriousness of her condition and the safety hazards it posed. The board did not accept OFCCP’s argument that ADA News No. 73 - 42- March 15, 2000
Keebler could have made accommodations to her condition, such as transferring the most dangerous tasks to other workers. Office of Fe