ADA news news reviews to peruse.

              ADA NEWS
2001
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" News Reviews to Peruse"
Number 83 January 2001
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, address changes, and 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.
WELCOME TO THE FIRST ISSUE OF 2001, THE TRUE NEW MILLENNIUM, AND THE ADA NEWS’ EIGHTH YEAR OF PUBLICATION!
ADA News No. 83 - 1- January 15, 2001
ADA News No. 83 - 2- January 15, 2001
“ COMPARATOR EVIDENCE” REQUIRED BY 11TH CIRCUIT - The U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) has issued a decision in which it required that an ADA claimant offer as part of his prima facie case evidence of how his level of ability differs from that of the average person - so- called “ comparator evidence.” The case involved a worker who injured his back, returning to work with a 14- pound lifting restriction, problems sleeping, and difficulty with prolonged sitting, bending and walking more than 50 yards. “ Because [ the worker] failed to demonstrate that his ability to walk is substantially limited as compared to the average person in the general population’s ability to walk, [ he] did not succeed in making out a prima facie case,” wrote Circuit Judge Wilson for the Court. The Court disagreed with what it saw as the tendency for courts to take judicial notice of the average person’s abilities, though it declined to describe exactly what type of comparator evidence would be sufficient to carry a claimant’s burden. Maynard v. Pneumatic Products Corp., CA11, No. 99- 12881, 11/ 22/ 00 ( http:// www. law. emory. edu/ 11circuit/ nov2000/ 99- 12881. MAN. html).
FAILURE TO COMPLETE EAP PROGRAM LEADS TO DISCHARGE - An employer does not break the law when it terminates an employee who fails to complete an Employee Assistance Program ( EAP) course of treatment for cocaine addiction. A federal district court in Illinois determined that the Chicago Transit Authority had not violated the ADA when it fired a bus driver who had twice failed to complete the EAP program, to which she had been referred after testing positive for cocaine. Employees of the CTA are required to successfully complete a six- month program after testing positive for a banned substance but, though the driver entered the program twice over a two- year period, she was dismissed from the program both times for non- participation. Under U. S. Department of Transportation regulations, persons performing “ safety- sensitive duties,” including driving a commercial bus, must be terminated if they test positive for illegal drugs, and may be returned to duty only if they complete a rehabilitation program. The driver’s positive drug tests and failure to complete the EAP gave the CTA a legitimate, non- discriminatory reason for her firing. The decision has been appealed to the U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN). Redding v. Chicago Transit Authority, N. D. Ill., Dkt. No. 99- CV- 1082, 9/ 28/ 00.
SHORTENED WEEK INSUFFICIENT TO SHOW SUBSTANTIAL LIMITATION IN WORKING - A senior manager is not substantially limited within the meaning of the ADA in the major life activity of working by virtue of being limited to a forty- hour work week, the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) has decided. The manager was required to work sixty to eighty hours per week, was on call 24 hours per day, wore a beeper at all times, and took numerous calls at home for emergencies when he experienced symptoms of a heart attack at work and was hospitalized. It was determined that the manager had suffered a severe panic attack, and he was diagnosed with major depression and anxiety. The manager returned to work, but was ordered by his physician to work fewer hours, and was required to take several days off for treatment. After the manager’s return from one absence, the employer informed him that it could not longer accommodate his work restrictions, and placed him on long- term disability leave. The trial court, affirmed by the Appellate Court, found that the manager was not protected by the ADA because his mental impairment, and his subsequent limitation to a forty- hour work week, did not substantially limit the plaintiff in the major life activity of working. The Court found that although overtime hours may be the normal practice for many jobs, an impairment that prohibits an individual from working over forty hours per week is not substantially limiting within the meaning of the ADA. The Court stated that before the manager’s panic attack, he regularly worked ADA News No. 83 - 3- January 15, 2001
between sixty and eighty hours per week, and that overtime hours were inherent in his job as a senior manager of train operations. The Court also held that the manager could not state a “ regarded as” claim simply by showing that the employer knew that he was impaired. Kellogg v. Union Pacific Railroad Co., CA8, No. 00- 1893 12/ 4/ 00 ( http:// www. ca8. uscourts. gov/ opndir/ 00/ 12/ 001893P. pdf).
TEMPLE UNIVERSITY INSTITUTE OBSERVES NATIONAL VICTIMS AWARENESS MONTH - April 2001 has been declared National Victims Awareness Month. In observance, the “ End the Silence Initiative” at the Institute on Disabilities of Temple University is planning a series of activities focusing on the criminal victimization of people with disabilities. Included among the activities is the “ End the Silence Victims Advocacy Award,” to be presented to individuals and organizations “ who have made a significant contribution to the lives of people with disabilities who have been victims of crime.” Award categories include “ Victim Services, Law Enforcement, Advocacy/ Self- advocacy, Parent/ Family Member, and Disability Service Provider.” Nominations should describe what the nominee has done on behalf of victims of crime with disabilities in Pennsylvania, detailing “ how long he/ she has worked on behalf of crime victims with disabilities, what he/ she has done to ensure physical or programmatic access to services for people with disabilities, any advocacy he/ she has done on behalf of victims of crime with disabilities, and/ or what he/ she has done to increase awareness about this issue.” Nominations will be accepted until January 30, 2001, and can be made online at http:// www. temple. edu/ inst_ disabilities/ iod/ events/ award_ letter. htm. Questions about the awards or any of the Institute’s activities may be addressed to Ms Beverly Frantz at ( 215) 204- 5078.
JUDGE VACATES VERDICT IN PENNSYLVANIA ADA CASE - A federal judge has overturned a jury verdict of $ 1.5 million in a suit brought under the ADA after finding that the employer, Guardian Life Insurance, had reasonably accommodated the plaintiff - a disability insurance underwriter - for years and that the employee herself had refused to participate in the “ interactive process” when a new accommodation was proposed. In his 17- page opinion, U. S. District Judge Ronald L. Buckwalter found that the jury should never have found in favor of the employee because she had flatly rejected her employer’s proposal without even discussing it and instead opted to apply for long- term disability benefits. Buckwalter found that participation in the interactive process “ is an obligation of both parties” and that “ neither can be faulted if the other does not supply information or answer requests of the other.” The employee was diagnosed with Crohn’s disease. Guardian accommodated the employee by allowing her to work from home three days each week on a schedule chosen by her, giving her a home fax machine, a computer and a private messenger service from office to home. By simply calling her supervisor, she could switch the two days that she was required to work at the office. In 1997, when the employee was preparing to return from work after an extended absence, Guardian asked that she begin naming the two days she would work in the office on the Friday before a week began. The employee refused to go along with the new proposal and instead filed for disability benefits, claiming that the company retaliated against her by cutting off the disability pay soon after she filed a complaint with the EEOC. Judge Buckwalter disagreed. “ Despite the fact that defendant had accommodated her for years, despite the fact that defendant had willingly deviated from its schedule to accommodate plaintiff in the past, despite the fact that plaintiff had an excellent relationship with [ her supervisor], and despite the fact that she continued to get good ratings, she simply closed the door on even attempting merely a week or at least some period of time under the [ new] schedule,” he wrote. Legally, Buckwalter said, her “ subjective and unsubstantiated belief that the … proposal would not work is insufficient to establish the ADA News No. 83 - 4- January 15, 2001
accommodation was unreasonable,” and her failure to even try the new plan, he said, “ resulted in the total breakdown of any kind of interactive process which should take place between an employer and the qualified employee with a disability.” The ADA’s interactive process requires more of employees, Buckwalter found: “ To reject out of hand a proposal to name her two office days on the Friday prior to each work week is not engaging in the type of interaction contemplated by the ADA to arrive at an accommodation that is fair and reasonable. This constituted a failure to comply with plaintiff’s duty to cooperate in the interactive process so that defendant cannot be faulted for a failure on its part with regard to finding a reasonable accommodation after its [ proposal] was rejected." Davis v. Guardian Life Insurance Company of America, EDPa., No. 98- 5209, 12/ 14/ 00 ( http:// www. paed. uscourts. gov/ opinions/ 00D0940P. HTM).
CALIFORNIA COURT DENIES COLOR BLIND CLAIM - A state appellate court in California has denied the claim of a man who maintained that a county sheriff’s office violated the ADA when it refused to hire him because he is color blind. The man claimed that the sheriff’s office “ regarded him” as having a disability when he applied for a job as a police officer. The court stated that to prevail in a “ regarded as” claim, a complainant must show that he or she was regarded as being substantially limited in the performance of a major life function. The court found that the applicant failed to show that working as a police officer is a major life function. Diffey v. Riverside County Sheriff’s Department, Cal. Ct. App., No. E024523, 11/ 14/ 00 ( http:// www. courtinfo. ca. gov/ opinions/ documents/ E024523. PDF).
FCC LISTENS TO HEARING IMPAIRED - The U. S. Federal Communications Commission is trying to find a solution to a problem that figures to get worse as wireless phones get more popular: Digital cell phones interfere with hearing aids. The FCC is currently accepting suggestions by the industry and people who wear hearing aids as to what should be done to make digital cell phones accessible to the hard of hearing. Cell phone transmission of radio waves creates an electromagnetic field around the phone’s antenna that causes an unpleasant humming sound or buzz for people with hearing aids, said David Baquis, a director for the Self Help For Hard of Hearing People. Digital cell phones and hearing aids “ interfere to the point ( that hard of hearing people) don’t want to have a conversation at all,” Baquis said. “ Not everyone has the same kind of experience. There are no identical types of hearing loss so they might experience the annoyance in different ways.” A spokesman for the Cellular Telecommunications Industry Association said the industry has been discussing the problem for a long time and plans, early next year, to release standards that cell phone manufacturers must comply with to make sure their phones don’t interfere with the different types of hearing aids on the market. Nokia and Motorola already have headsets that people with hearing aids can use with their digital phones.
DISABILITIES WEBSITE OF THE MONTH - The “ Disability News Service” is the first for- profit, disabled- owned news service in the United States to regularly provide disability- related news and information to the national media. In publication since 1997, the DNS provides daily articles and insights on national and world disability- related topics. The DNS website offers news, resources, a listserv, a current events calendar for consumers, advertising opportunities for businesses, and free classified ads for people with disabilities and employers. The website can be accessed in text and graphics versions, and is Bobby approved. ( The graphics version is a little difficult to read, owing to the small size of the lower window. I’d recommend opening it in a new frame for easier reading. - Ed.) Catch it at http:// disabilitynews. com.
ADA News No. 83 - 5- January 15, 2001
NEW FEDERAL OFFICE OF DISABILITY POLICY LOOKS LIKELY - The spending bill passed by the U. S. House and Senate in December included funding for the Department of Labor to create the Office of Disability Policy, an agency dedicated to improving access to employment services for persons with disabilities. Creation of the office was proposed by President Clinton last year upon the recommendation of the disabilities community. See “ ADA News” No. 73, 3/ 15/ 00 ( http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 73. htm). According to Edward B. Montgomery, deputy secretary of labor, the new office will focus on the “ critical problem” of high unemployment among persons with disabilities, and ensure accessibility of government services, among other tasks. http:// www. dol. gov/ dol/_ sec/ public/ programs/ ptfead/ 1999rpt/ 1999rpt. txt
PENNSYLVANIA TRANSIT SYSTEM LOSES LAWSUIT - Disability advocates won a major victory against the Southeastern Pennsylvania Transportation Authority ( SEPTA) in a suit that says too many riders with disabilities are denied rides on SEPTA’s paratransit system. Senior U. S. District Judge Lowell A. Reed Jr., declaring that SEPTA is violating the ADA due to the high number of riders who are left without transportation on a daily basis, Reed granted summary judgment in favor of the two advocacy groups that brought the lawsuit - Liberty Resources Inc. and Consumer Connection - and said he will decide on the remedy later. The opinion includes some strong criticisms of SEPTA for its failure to comply with federal regulations despite the fact that SEPTA arranges for rides for 97% of the disabled persons who request them. “ SEPTA may not rely on its own inadequacies to justify its noncompliance with the ADA and the Rehabilitation Act for all ADA- eligible patrons,” Reed wrote. Looking to statistics for a 13- month period, Reed found that nearly 30,000 ADA- eligible patrons were denied rides. “ Every day, approximately 74 disabled individuals are prevented from using the paratransit system. Spread over a 24- hour day, each hour, an average of three disabled individuals are denied rides,” Reed wrote. “ These individuals are kept from not only personal engagements, but from jobs and medical appointments as well.” For the disabled riders, Reed said, “ SEPTA’s present paratransit system offers no safety net.” Liberty Resources Inc. v. SEPTA, EDPa., 99- 4837, 1/ 4/ 01 ( http:// www. paed. uscourts. gov/ opinions/ 01D0021P. HTM).
CALIFORNIA AMENDS DISABILITIES LAW - California recently enacted one of the most liberal disabilities laws in the country. Assembly Bill 2222 ( 1999), effective January 1st, made significant changes to existing state law. Among the changes are: the law newly defines “ disability” as a physical or mental impairment that limits a major life activity ( not “ substantially limits”); requires a broad interpretation of major life activity; requires disability determinations be made without consideration of mitigating measures; defines the major life activity of “ working” as limited if someone is restricted in the performance of only a single job; requires that employers engage in an “ interactive process” with employees seeking job accommodations; and installs no caps on damages. One California employment attorney stated that employers will now have to be “ extraordinarily aware of how to run their employment selection and handle current workers because now almost anything will qualify as a disability.” Browse to http:// www. leginfo. ca. gov/ pub/ 99- 00/ bill/ asm/ ab_ 2201- 2250/ ab_ 2222_ bill_ 20000930_ chaptered. html to see a copy of the new California law.
AREA CALENDAR -
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Employment Law and Legislative Conference; March 19- 21, 2001; Washington, DC; 18th ADA News No. 83 - 6- January 15, 2001
annual conference sponsored by the Society for Human Resource Management includes sessions on effective supervision and employees with disabilities. Info at ( 703) 548- 3440, or http:// www. shrm. org/ conferences/ leg/ index. html.
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“ Pennsylvania Workforce Summit 2001”; January 24- 26, 2001; Hershey Lodge and Convention Center, Hershey, PA; summit is designed to bring together business, labor, education, government and community leaders to discuss solutions for meeting the workforce needs of the global economy. Info at http:// www. paworkforce. state. pa. us.
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Employment Discrimination and Civil Rights Actions in Federal and State Courts; May 10- 12, 2001; Boston, MA; sponsored by the American Law Institute- American Bar Association Committee on Continuing Professional Education ( ALI- ABA). Info at ( 800) 253- 6397, or http:// www. ali- aba. org/ Main_ bA. htm.
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Americans with Disabilities Act Briefing; April 19- 20, 2001; Washington, DC; sponsored by National Employment Law Institute ( NELI). Info at ( 303) 861- 5600, or http:// www. neli. org/ programs2. asp? ProgramID= 2.
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Advanced Employment Law and Litigation; November 29- December 1, 2001; Washington, DC; sponsored by American Law Institute- American Bar Association Committee on Continuing Professional Education ( ALI- ABA). Info at ( 800) 253- 6397, or http:// www. ali- aba. org/ Main_ bA. htm.
RESOURCES - Some disability/ employment- related resource material recently added to the catalogue. Publications from the Equal Employment Opportunity Commission ( EEOC) can be ordered at http:// www. usdoj. gov/ crt/ ada/ publicat. htm, or by calling 1- 800- 514- 0301( V) or 1- 800- 514- 0383( TTY).
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The Pennsylvania Department of Labor and Industry has begun publication of two new newsletters. Team Pennsylvania CareerLink focuses on DLI’s implementation of the Workforce Investment Act as well as services for job seekers, employers and others. The Labor- Management News is intended to inform the public of labor- and management- related developments in Pennsylvania. For information, browse to http:// www. dli. state. pa. us.
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The EEOC issued a new section to its Compliance Manual on December 7, 2000 which provides an updated, comprehensive analysis of the most important compensation issues under each of the anti- discrimination laws enforced by the agency. Compliance Manual section 10: “ Compensation Discrimination” sets forth the standards under which compensation discrimination is established in violation the ADA and other equal protection laws. The new section addresses, among other things, various forms of compensation including salary, overtime pay, bonuses, stock options, profit sharing plans, life insurance, vacation and holiday pay, reimbursement for travel expenses, and other fringe benefits. To read the new section 10, browse to http:// www. eeoc. gov/ docs/ compensation. html.
ADA News No. 83 - 7- January 15, 2001
STATE PRISON MUST ACCOMMODATE GUARD’S ASTHMA - A Louisiana state appellate court has directed the state corrections department to accommodate a guard with asthma by assigning him to a “ smoke- free/ fragrance- free” post, upholding a jury verdict. The court found that the guard was substantially limited in the major life activity of breathing, both in medicated and unmedicated states. Further, the court found that his inability to work for extended periods in the smoke and odor- filled prison dormitory environment did not mean that he could not perform all the essential functions of a prison guard. Bazert v. Louisiana, La. Ct. App., No. 99 CA 2115, 9/ 22/ 00 ( http:// www. la- fcca. org/ Opinions/ Pub2000/ Sept2000/ 99CA2115. SEPT. 00. pdf).
DEVICE HELPS AVOID CLOTHES THAT CLASH - For people with sight impairments, getting dressed may pose a series of logistical problems. Careful organization or a limited wardrobe is sometimes necessary for avoiding fashion faux pas such as clashing colors. The Japan- based Hokkei Industry Co., however, is developing a device that promises to make sorting clothes less trouble- prone for the visually impaired. Shaped and sized roughly the same as a cell phone, the device, called “ Color Talk,” contains a color diode sensor on one side. When a user lays it on a piece of clothing and presses a button, a small speaker in the unit announces the fabric’s color, based around 13 standard colors. The system then adds two descriptive words to create a total of 220 distinctive colors, such as “ vivid yellowish red” or “ dark greenish blue.”
EEOC REVISES GUIDANCE ON STAFFING AGENCIES - According to a new EEOC internal guidance document, both temporary help agencies and their clients may be considered “ employers” under the ADA, and therefore have obligations to placed or employed persons under the Act. The new guidance, published December 22nd, can be found on the EEOC website at http:// www. eeoc. gov/ docs/ guidance- contingent. html.
PNC BANK TO TEST “ ACCESSIBLE ATM” - Following the lead of a number of national banks as reported in recent issues, Pittsburgh- based PNC Financial Services Group has announced it will test a new system designed to allow customers with low and no vision to use its automatic teller machines. Unlike other banks that are pioneering “ talking ATMs,” PNC has devised its own unique system, a system which is being greeted with mixed reviews by disabilities advocates. This spring, PNC will begin a six- month test period of a program that will allow fifty customers with visual impairments in Pittsburgh and Philadelphia to use their personal mobile phones, or ones provided by the bank, at special ATMs to talk with a PNC employee at a “ call center” who will “ coach” them through their ATM transaction and monitor it via computer. The Disabilities Law Project has neither endorsed nor rejected the new system. “ We will see if the use of cell phones complies with the law,” said Mark Murphy, DEP deputy director. Cathy Long, president of the Capital City Council of the Blind, also has her doubts, though she says PNC is moving in the right direction. “ Talking machines would give us more self- reliance,” Long said. “ What if the [ call center] line is busy?” The new PNC system is being offered by PNC as part of a tentative settlement of a 1999 lawsuit brought by two bank customers. ( PNC press release at http:// www. prnewswire. com/ cgi- bin/ micro_ stories. pl? ACT= 701257& TICK= PNC& STORY=/ www/ story/ 01- 04- 2001/ 0001396867& DATE= Jan+ 4,+ 2001.)
VOICE- GUIDED ATMS IN DEVELOPMENT - Diebold Inc. of Canton, Ohio, a major manufacturer of automated teller machines, has developed a prototype for an inexpensive machine guided entirely by ADA News No. 83 - 8- January 15, 2001
audio prompts. The company was spurred in part by a lawsuit filed against Diebold and the Rite- Aid Corporation under the ADA charging that the machines that Diebold was installing in Rite- Aid stores used screen text prompts that were inaccessible to the blind. ( See “ ADA News” No. 76, 6/ 15/ 00 ( http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 76. htm.) The new automated teller machines are designed for the world of $ 5,000- to-$ 8,000 “ plug- them- in” ATMs springing up in retail spaces like drugstores and grocery stores throughout the country. Inexpensive enough to be bought by small businesses, the new machines will make bank transactions more accessible and convenient for the blind. Within a year or so customers may plug headphones into an ATM at the corner grocery store and be guided by synthesized speech asking politely, “ How much cash do you want?” Using voice to guide an ATM is not a new idea; but older machines, primarily found in banks, usually use sound cards with canned messages, typically recorded by actors, that are stored on the machine in the form of audio files. Any time the procedure changes, the script must be changed and re- recorded by the actors an expensive procedure. The new machines are not likely to produce the polished tones of an actor, but they will cost a lot less and be much more flexible. That is because the voices that will speak from the new machines will be generated not by professionals but by computer software that converts text into synthesized speech.
PAUL G. HEARNE AWARD WINNERS CHOSEN - The Washington- based American Association of People with Disabilities ( AAPD) announced the winners of the 2000 Paul G. Hearne/ AAPD Leadership Awards in December, each of whom will receive a $ 10,000 cash grant to continue their leadership activities. AAPD is a national membership organization working to promote political and economic empowerment of children and adults with disabilities in the United States. Selected from hundreds of U. S. applicants, a diverse group of eleven people with disabilities won the prestigious award. The Paul G. Hearne/ AAPD Leadership Awards program was established in 1999 in honor of the founder of AAPD, Paul G. Hearne. The Awards program recognizes emerging leaders with disabilities who demonstrate leadership while having a positive impact on the community of people with disabilities. Some of the award recipients were: Olegario D. Cantos, VII of West Covina, CA, who plans to create an outreach internship program with the Hearne Award, as well as mentoring others to establish a Disability Rights Clearinghouse, place an interactive disability rights training online, and lay the foundation for a united voice to address disability- related issues; Matthew Cavedon, age 11, from Bloomfield, CT, who has worked as the spokesperson for Boundless Playgrounds, a non- profit organization that promotes universal access in playgrounds, so that all children can play together; Robert E. Coward, Jr. from Washington, D. C., who is the Chairperson of Capitol Area ADAPT, which is working to change a system that supports segregation in nursing homes rather than providing home and community based services; Tamar Michai Freeman of Berkeley, CA, who recently founded a non- profit organization called Glad To Be Here, dedicated to personal empowerment of women with disabilities; and Kyle Glozier, age 14, of New Freeport, PA, who has testified before Congress, spoken at the Democratic National Convention, and continues to speak about policy changes needed in education, community based services, and employment.
PHYSICIAN’S TERMINATION PERMITTED WHERE THREAT TO PATIENTS PRESENT - A medical center operator, which perceived a physician as having alcoholism, was justified in terminating the physician on ground that she posed an immediate risk to patients, said the U. S. Court of Appeals for the Seventh Circuit. The operator had good reason to believe the physician was under influence of alcohol while seeing patients and that her problem was persistent despite intervention. The operator had a policy ADA News No. 83 - 9- January 15, 2001
prohibiting use of alcohol in workplace. Bekker v. Humana Health Plan, Inc., 229 F. 3d 662 ( 7th Cir. 2000) ( http:// www. ca7. uscourts. gov/ fox/ foxweb. exe/ Op3? yr= 99& num= 1215& Submit1= Request+ Opinion).
LANDMARK ADA LAWSUIT SETTLED IN TEXAS - Humana Inc. and PacifiCare Health Systems Inc. have settled a ground- breaking Texas lawsuit alleging that they denied medical care to chronically ill health plan members and that the denials violated their patients’ rights under the ADA. The lawsuit marks the first time the ADA has been used to sue an HMO to contest its decision to limit a patient’s medical care or deny access to treatment. The settlement came while jurors were in deliberations over whether the clinic was liable for damages as a result of treatment denials. The HMOs opted to settle the allegations for an undisclosed sum and with no admission of wrongdoing. According to a lawyer for the plaintiffs, the insurers used a delay and deny tactic known as “ turf and surf” to make it difficult for his clients to receive medically necessary treatment and to frustrate them so they would give up fighting their treatment denials. “ The HMOs make it difficult to get referrals on their ‘ turf’ and then they ‘ surf’ their patients out of the system to get rid of high- cost patients,” he said.
JUDGE RULES IN BROOKS’ FAVOR - Garth Brooks has no special obligation to provide front- row seating for people in wheelchairs, a judge said last month, disappointing disabled advocate Joanne Lawrence, who claimed the entertainer unfairly made room for pretty women over people with disabilities. Judge Learned ruled in the country singer’s favor in denying several requested injunctions, essentially eliminating Brooks from a lawsuit and placing the burden on stadium management. Learned ruled that Lawrence failed to provide substantial evidence that she was harmed by Brooks. She had tried to prove Brooks’ complicity in the allegedly restrictive seating accommodations for people with disabilities. Brooks’ contracts with concert venues gives him seating control of the front two rows for any of his concerts, and Lawrence claimed the singer uses that power to fill the rows with pretty women. A Brooks attorney contends that his client uses control of the front two rows to keep scalper prices down and to give fans stuck high in the stands a chance to see the performance up close. In part because of the publicity surrounding a similar earlier case against the Tacoma Dome, Lawrence, a community service teacher, won the 1998 Carolyn Blair Brown Governor’s Trophy, the state’s highest honor for a person with a disability who has made a difference for people with disabilities.
ASSISTANCE ANIMALS COME IN ALL VARIETIES - So you thought the assistance pig was unusual? ( See “ ADA News” No. 81, 11/ 15/ 00 ( http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 81. htm.) Would you believe an assistance horse? Not as unlikely as it sounds, and a lot better story that the pig. Come spring, Dan Shaw of Ellsworth, Maine, will be what advocates say is the first blind person in the country with a miniature horse as a full- time personal guide. Just 22 inches tall and 50 pounds in weight, “ Cuddles” is one of 10 tiny horses being trained by a North Carolina couple to be guides for the blind. Wearing little sneakers on her tiny hoofs, the female horse will lead Shaw - who resisted for years getting a guide animal, despite his worsening vision - to the local drugstore, his roadside mailbox, even through a crowded shopping mall. She is taught to protect him from a moving car and warn him of a low- swinging branch. Why rely on a horse when there are so many expertly trained dogs out there? Trainers say the biggest advantage is durability: The average miniature horse will live to 40, three times longer than most guide dogs. Also, because of the positions of their eyes, horses have much wider fields of vision than dogs, nearly 350 degrees. For Shaw, though, the main appeal is having his own distinctive way of dealing with his disability. “ It’s the only thing that has gotten me over the hurdle of admitting my blindness,” he ADA News No. 83 - 10- January 15, 2001
s
aid. “ It sounds crazy, but it’s true.” ADA News No. 84 - 11- February 15, 2001
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" News Reviews to Peruse"
Number 84 February 2001
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, address changes, and 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.
KEEP IT TO YOURSELF! - The ADA requires that information about a person’s medical condition and disability status be kept confidential. Section 102 of the Act ( 42 U. S. C. § 12112) provides that information regarding the medical condition or history of any employee must be treated as a “ confidential medical record.” Such information may be shared with supervisors and managers only as necessary to superintend work or to arrange for accommodations. Supervisors and managers are well advised not to discuss an employee’s medical condition or accommodation requests with anyone except the employee, or with those persons designated by the employer to process and approve accommodation requests, or to speculate about anyone’s medical condition. ADA News No. 84 - 12- February 15, 2001
ROOSEVELT STATUE REDEDICATED - Since even before it was completed in May 1997, people with disabilities and others complained about the seven- acre Franklin Delano Roosevelt Memorial in Potomac Park in Washington, DC, because it did not depict FDR in the wheelchair the former President designed and used. FDR never took an unassisted step after he was stricken with polio at age 39 in 1921. Due in no small part to the lobbying of disabilities advocacy groups like the National Organization on Disability, the National Park Service last year began construction of an additional display at the memorial. The new statue - a life- size depiction of FDR seated in his wheelchair - was unveiled on January 10th in a ceremony attended by President Clinton, a Roosevelt granddaughter, and a few hundred people, most with disabilities and/ or representing disabilities groups. According to architect Lawrence Halprin, his original design for the memorial was more historically accurate, following Roosevelt’s preference for keeping his disability from the public eye. ( Of the 10,000 photographs in the presidential archives, only four show FDR in his wheelchair.) However, Halprin said he now believes the sculpture, created by Robert Graham, improves the aesthetics of the open- air memorial. “ It’s a wonderful portrayal,” declared Meryl Shecter, who is blind, of the chair. Then, speaking of the man, she added, “ I took courage from him, because I believe that since he was able to do what he did, the sky’s the limit for me.” “ I think FDR was afraid of showing his disability,” said Kyle Glozier, 15, of New Freeport, Pennsylvania, communicating via a keyboard on his lap. He said he hopes to become the first president with cerebral palsy, adding: “ I think showing him sitting in his wheelchair is a good sign of people accepting people with disabilities.” The NOD raised $ 1.65 million for the statue.
NEW PTFEAD REPORT ANNOUNCED - At the FDR Memorial ceremony, US Secretary of Labor Alexis Herman presented President Clinton with the third annual report of the President’s Task Force on Employment of Adults with Disabilities, documenting the administration’s activities in promoting employment over the last year and offering recommendations for the future. “ During my tenure as Secretary of Labor, we have focused on the new American workforce - a workforce that includes workers with disabilities as full and equal partners,” Secretary Herman said. “ We made significant progress toward closing the employment gap for people with disabilities and we must never lose sight of that goal.” The report, titled “ Charting the Course: Turning Points,” commended the President for his efforts in establishing the new Department of Labor Office of the Assistant Secretary for the Employment of Adults with Disabilities. ( http:// www. dol. gov/ dol/_ sec/ public/ programs/ ptfead/ 2000rpt/ index. htm)
CBA SENIORITY PROVISIONS TRUMPS ADA ACCOMMODATION - The U. S. Court of Appeals for the Ninth Circuit ( WA, ID, OR, NV, CA, AK, HI, AZ) has affirmed that an employer or labor union is not required to violate the seniority provisions of a collective bargaining agreement in order to provide an accommodation for an employee with a disability. The Court held that accommodations proposed by two long shore workers were per se unreasonable in that the CBA contained bona fide seniority provisions, noting that the facts surrounding this case involved a bargained for seniority system contained in a CBA and that the rights of other union members under the National Labor Relations Act were implicated. The Court joined eight other circuits that have held that an accommodation that violates a CBA is per se unreasonable ( First, Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits). The Court noted, however, that the per se rule that it adopted is only applicable where there is a direct conflict between the proposed accommodation and the collectively- bargained seniority rights of other employees. Willis v. Pacific Maritime Association, CA9, No. 97- 16778, 1/ 10/ 2001 ADA News No. 84 - 13- February 15, 2001
( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ 04485f8dcbd4e1ea882569520074e698/ c2c432a8006175b4882569d000625f0f? OpenDocument).
FOURTH CIRCUIT GOES FARTHER TO SHIELD SENIORITY - The U. S. Court of Appeals for the Fourth Circuit ( MD, WV, VA, NC, SC) went even farther in defending the seniority provisions in a company policy against an ADA accommodation. The EEOC brought a lawsuit against Sara Lee Corporation on behalf of an employee with epilepsy. Following a plant closing, the employer permitted a more- senior employee from the closed plant to bump the less- senior employee with epilepsy from his shift under the terms of a company policy. No collective bargaining agreement was involved; nonetheless, the Appellate Court affirmed summary judgment on behalf of the employer. The Court noted that the employer’s seniority policy was a neutral and non- arbitrary method of resolving sensitive questions in the workplace and that the policy allowed all workers to know the rules of the game before a decision was made. The Court opined that all workers, not only those covered by a CBA, must be capable of relying upon established company policies. The Court maintained that the ADA does not require that an employer disrupt the operation of a defensible and non- discriminatory company policy in order to provide a reasonable accommodation. Furthermore, the Court noted, the ADA does not require employers to penalize employees free from disability in order to vindicate the rights of disabled workers. The Court joins eight other circuits that have held that the ADA’s reasonable accommodation standard does not require an employer to abandon a legitimate and non- discriminatory company policy ( Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and DC Circuits). EEOC v. Sara Lee Corp., CA4, No. 00- 1534, 1/ 9/ 2001 ( http:// pacer. ca4. uscourts. gov/ cgi- bin/ getopn. pl? OPINION= 001534. P).
DISABILITIES WEBSITE OF THE MONTH - The Arc of Dauphin County has kicked off its annual giving campaign. The Arc is a non- profit organization whose primary purpose is to provide services with dignity and respect to persons of any age who have mental retardation. Services include advocacy and self- advocacy training, job training, camps for kids with mental retardation, community education and personal support services. The annual campaign gives an opportunity to individuals and businesses to financially support The Arc’s services. “ We ask you to join us in contributing to The Arc because it changes lives,” say Dick and Ginny Thornburgh. “ Our son Peter is one of thousands who have benefitted.” More information on The Arc of Dauphin County’s Annual Appeal can be found at http:// www. arcofdc. org/ appeal2001. htm; or find a chapter in your area by browsing to The Arc of Pennsylvania, at http:// www. thearcpa. org/ chapters. html, or nationally at http:// www. thearc. org/ chapters. htm.
EEOC ATTACKING BACKLOG - According to new information from the Equal Employment Opportunity Commission, the Commission was successful last year in cutting its backlog of pending cases from approximately 40,000 in 1999 to 34,300 by year’s end, the lowest number of open cases since 1993. Chairwoman Ida Castro credits quicker processing of claims and increased use of alternative dispute resolution for the decrease. Castro set a goal of 8,000 mediated cases, a number the Commission is now approaching. The EEOC estimates the average time for processing a charge is now 216 days. The number of charges filed in 2000 was slightly higher than the prior year. Disability discrimination claims constitute approximately 20 percent of all claims filed. The complete “ EEOC Accomplishments Report for Fiscal Year 2000" can be found online at http:// www. eeoc. gov/ accomplishments- 00. html.
ADA News No. 84 - 14- February 15, 2001
AREA CALENDAR -
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Americans with Disabilities Act Briefing; April 19- 20, 2001; Washington, DC; sponsored by National Employment Law Institute ( NELI), ( 303) 861- 5600 ( http:// www. neli. org)
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Advanced Employment Law and Litigation; November 29- December 1, 2001; Washington, DC; sponsored by American Law Institute- American Bar Association Committee on Continuing Professional Education ( ALI- ABA), ( 800) 253- 6397 ( http:// www. ali- aba. org)
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" Emerging Issues in Employment Law and Litigation" - ALI- ABA CLE Video Course on Employment Law and Litigation; February 22, 2001; the American Law Institute- American Bar Association’s Committee on Continuing Legal Education will offer this course in more than 80 cities through a live satellite TV program. The course will emphasize non- compete agreements, tax issues in employment cases, Fair Labor Standards Act update, employment law issues involving overseas employees and foreign corporations doing business in the United States, and contingent and temporary worker issues. For more information, contact ALI- ABA by phone at 1- 800- CLE- NEWS or by fax at ( 215) 243- 1664, or visit http:// www. ali- aba. org.
“ WHICH WAY FOR THE ADA?” is the title of an article that appeared in the December edition of the journal of the American Bar Association. The article discusses the “ ADA Notification Act,” the legislation proposed by Congressmen Mark Foley ( R- Fla.) and Clay Shaw ( R- Fla.) that would require a person give 90- days notice prior to filing of an accessibility lawsuit. “ This bill would allow small- business owners to be made aware that they might be out of compliance before they have to hire an attorney and be forced to settle,” says Scott Vincon of the U. S. Chamber of Commerce, which supports the bill. John Kemp, vice- president of Halftheplanet. com, however, thinks that the ADA’s requirements were made clear when the law passed in 1992, and that business owners have received ample notice of its requirements. Former Pennsylvania governor and U. S. Attorney General Dick Thornburgh says he believes that accepting the 90- day notice period may be good public relations for the disabilities movement. Read the entire article, which also discusses upcoming Supreme Court cases, online at http:// www. abanet. org/ journal/ dec00/ fada. html.
ENGINEER FAILS TO PROVE ARM PAIN SUBSTANTIAL LIMITATION - A professional engineer who was assigned by his employer to perform solely manual tasks in an apparent attempt to force him to resign failed to convince the U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) that his arm and wrist pain constituted a disability under the ADA. Despite testimony that the employee’s tendinitis restricted his ability to perform tasks that required movement of his wrist and forearm, such as “ typing, cutting, grasping objects, writing with a pen, and working on a computer,” the Court found it was not a substantial physical impairment on the his ability to perform manual tasks, where he admitted that he can assist his spouse with household activities, dress and feed himself, and drive a car. Chanda V. Engelhard/ ICC, CA11, No. 99- 13917, 12/ 04/ 00 ( http:// laws. lp. findlaw. com/ 11th/ 9913917opn. html).
EMPLOYEE PARKING NOT A TITLE III ISSUE - A disabled worker who sues her employer for denying her a handicap parking spot cannot bring claims under the ADA invoking both Title I and Title III, U. S. ADA News No. 84 - 15- February 15, 2001
District Judge Ronald L. Buckwalter has ruled. In his 13- page opinion, Judge Buckwalter found that Congress structured the ADA so that all employment claims would be brought under Title I, and dismissed the worker’s claim against Temple University under Title III of the Act. He did, however, allow her Title I claim to go forward. “ Title I speaks directly to plaintiff’s claim that she asked for and was denied access to disabled persons’ parking which she needed to access her workplace comfortably,” Buckwalter wrote. “ To find Title III applicable in this case would be to ignore Congress’ attempt to carve out specific legislation to govern disability discrimination in the employment context.” Because the parking issue was directly related to her job, he said, the worker cannot “ characterize herself as a non- employee for the sake of qualifying under Title III as well as Title I.” DeWyer v. Temple University, EDPa. No. 00- CV- 1665, 2/ 5/ 01 ( http:// www. paed. uscourts. gov/ opinions/ 01D0108P. HTM).
REPRESENTATIVE LANGEVIN TAKES OFFICE - On January 3rd, Jim Langevin made history on Capitol Hill, when the newly- elected Democratic Representative from Rhode Island was sworn in as the first quadriplegic ever to serve in the U. S. Congress. Langevin’s legs are paralyzed, and he has limited use of his arms due to a gun accident as a teenager. He steers his battery- powered wheelchair using his hand and gets around in a modified van that lowers to the curbside. He uses voice- recognition technology to dictate correspondence on his computer, and has a personal assistant who prepares his meals and helps him with other daily tasks. Langevin’s special needs are forcing Congress to finally comply with the ADA. The Senate, which started first, and the House are in the process of building special entrances and exit facilities for Langevin and other wheelchair users, such as Senator Max Cleland ( D- Ga.), a triple amputee. The Architect of the Capitol office is also working on upgrading elevators and bathrooms to make them accessible to folks with disabilities. The Clerk of the House is designing an accessible voting system for quadriplegics such as Langevin. Representative Langevin’s political agenda includes issues such as campaign finance reform, gun control, and protecting Social Security and Medicare, and he also hopes to introduce legislation that would make assistive technologies cheaper and more accessible to others with disabilities. “ This act [ the ADA] helped me get where I am,” says Langevin.
MENTALLY ILL GET A NEW COURT IN GEORGIA - When it begins early next month, DeKalb County’s Mental Health Court will be a first for Georgia: a coordinated effort to divert nonviolent offenders with serious mental illnesses away from jail and into treatment. Read about it at Law. com at http:// www. law. com/ cgi- bin/ gx. cgi/ AppLogic+ FTContentServer? pagename= law/ View& c= Article& cid= ZZZ0O6GOSGC& live= true& cst= 1& pc= 0& pa= 0& s= News& ExpIgnore= true& showsummary= 0.
BUS COMPANIES ENTITLED TO TRIAL - A federal court decision last year deprived the U. S. Department of Transportation of the authority to penalize bus companies for violating the ADA without court hearings. The U. S. Court of Appeals for the District of Columbia Circuit ruled November 14th in favor of the American Bus Association, a Washington D. C.- based organization of over- the- road bus companies. The ruling took away the right of the Transportation Department to force bus companies to automatically pay passengers with disabilities each time the bus companies failed to give them access to wheelchair lifts or similar accommodations. Until the Court’s ruling, the Transportation Department required bus companies to compensate inconvenienced passengers $ 300 for a first violation of the ADA and increasing by $ 100 for each violation up to $ 700; afterward, each violation incurred a $ 700 penalty. In addition to a lack of wheelchair lifts, typical violations included inadequate signs for riders with hearing- ADA News No. 84 - 16- February 15, 2001
impairments and a lack of audible or sensory messages for customers with visual- impairments. A Transportation spokesman said although the ruling deprived the federal government of one way of enforcing the ADA, other remedies are available. “ This is one that was intended to be relatively quick and automatic,” he said. “ I think the requirements for over- the- road bus transportation will continue to be enforceable.” American Bus Association v. Slater, CADC, No. 99- 5390, 11/ 14/ 00 ( http:// pacer. cadc. uscourts. gov/ common/ opinions/ 200011/ 99- 5390a. txt).
DECREASE IN SEXUAL PERFORMANCE NOT A DISABILITY - Never underestimate the creativity of plaintiffs - or plaintiffs’ lawyers - in fashioning an argument under the ADA. Just ask the U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN), which last month affirmed a lower court’s granting summary judgment to an employer in a case involving an employee’s alleged decrease in sexual performance stemming from an on- the- job back injury. The employee, who had been injured in a fork lift accident, relied on the decision of the U. S. Supreme Court in Bragdon v. Abbot, claiming that he was substantially impaired in the major life activity of engaging in sexual relations because he was no longer able to do so as often as before his accident. The Court acknowledged that the Supreme Court had found reproduction to be a major life activity in Bragdon. According to the Court, however, the employee produced “ not even a scintilla of evidence that he is significantly restricted as to the condition, manner or duration under which he can reproduce as compared to the average person in the general population.” Sic. Contreras v. Suncast Corp., CA7, No. 00- 1977/ 2493, 1/ 3/ 01 ( http:// www. ca7. uscourts. gov/ fox/ foxweb. exe/ Op3).
VARIETY OF IMPAIRMENTS DO NOT AMOUNT TO DISABILITY - An administrative employee failed to show that her various medical problems rose to the level of a disability under the ADA and Rehabilitation Act, or that her employer regarded her as disabled, according to the U. S. Court of Appeals for the Eleventh Circuit ( FL, AL, GA). Evidence showed that the employee’s chronic seizure disorder was largely controlled by medication, and while seizures, high blood pressure, mitral valve prolapse, diabetes, migraines, and depression had an adverse impact on her life, the Court found no evidence that the impairments had any adverse effect on her work performance, or limited her in any major life activity. The Court found “ telling” that the employee testified that she considered herself an “ active person” who walked, swam, fished, and had held a full- time job for the previous eight years. Cash v. Smith, 231 F. 3d 1301 ( 11th Cir. 2000) ( http:// www. law. emory. edu/ 11circuit/ nov2000/ 99- 12797. MAN. html).
RESOURCES - Some disability/ employment- related resource material recently added to the catalogue. Publications from the Equal Employment Opportunity Commission ( EEOC) can be ordered at http:// www. usdoj. gov/ crt/ ada/ publicat. htm, or by calling 1- 800- 514- 0301( V) or 1- 800- 514- 0383( TTY).
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Standards for Electronic and Information Technology: An Overview - The Access Board under section 508 of the Rehabilitation Act has issued new standards for electronic and information technology and section 508 compliance guidelines. The Access Board is an independent Federal agency devoted to accessibility for people with disabilities. ( http:// www. access- board. gov/ sec508/ summary. htm)
MEANINGFUL ACCESS, NOT EQUAL ACCESS, IS GUARANTEE OF TITLE II - Once it is determined that benefits under a public program are provided to all, a governmental entity is required by Title II of ADA and Rehabilitation Act to make reasonable accommodations necessary to ensure that individuals with disabilities have meaningful access to those benefits, according to a decision from the Eastern District of New York. The court found that a New York City program to provide federal and state benefits for individuals suffering from acquired immune deficiency syndrome ( AIDS) chronically and systematically failed to provide meaningful access to public assistance programs, benefits, and services, in violation of Title II of ADA and Rehabilitation Act, and thus would be permanently enjoined. A showing that persons with disabilities seeking benefits were merely treated the same as non- disabled persons is insufficient to satisfy the Act, said the court. Therefore, comparing the manner in which benefits are administered to disabled and non- disabled persons is not required in an action under Title II; the question of equality of administration is irrelevant in a claim for reasonable accommodation of benefits. Henrietta D., et al. v. Giuliani, 119 F. Supp. 2d 181 ( USDC EDNY 9/ 18/ 00) ( http:// www. nyed. uscourts. gov/ pub/ rulings/ cv/ 1995/ 95cv00641mo. pdf).
However, the ADA and the Rehabilitation Act do not require that substantively different services be provided to persons with disabilities, no matter how great their need for the services may be, according to the U. S. Court of Appeals for the Second Circuit ( NY, VT, CT). The law requires only that covered entities make reasonable accommodations to enable meaningful access to such services as may be provided, whether such services are adequate or not. The case involved a request for preliminary injunction to require New York City to make improvements in emergency housing provided to persons diagnosed with Human Immunodeficiency Virus ( HIV) or Acquired Immune Deficiency Syndrome ( AIDS). The Court found the record on appeal was not sufficiently developed to determine whether the particular relief sought would be a reasonable accommodation affording meaningful access to the City’s emergency housing program, or that a separate program conceived and implemented would provide additional substantive benefits to certain disabled persons. Wright, et al. v. Giuliani, 230 F. 3d 543 ( 2d Cir. 2000) ( https:// www. tourolaw. edu/ 2ndCircuit/ October00/ 00- 7853. html).
BEWARE THE INTANGIBLES - Employers often reject applicants because they don’t think the applicant will be a “ good fit” in the workforce. Interviewers should be very cautious that this type of guesswork - rejecting an applicant based on undocumented, inexplicable “ intangibles” - not be a cover for disability discrimination. Interviewers who focus on an applicant’s skills, abilities and knowledge, and who do not reject an applicant based on perceived traits or behaviors, will not expose employers to charges of disability discrimination.
CLASS ACTION CHALLENGES SSA BENEFITS DISTRIBUTION - The Social Security Administration and state officials routinely turn away disabled and mentally ill people who qualify for social security insurance and Medi- Cal, according to a class action filed in federal court in December by a Berkeley, California advocacy group. Attorneys for the Homeless Action Center and seven Bay Area residents allege state officials often fail to seek out county hospital records when they decide whether people qualify for benefits, although those facilities are most often used by poor people. Instead, the applicants are evaluated by doctors contracted by the state. Those physicians often reject applicants seeking long- term disability and Medi- Cal, according to the suit. The legal fight will center on how far the state is required to go to get an accurate picture of an applicant’s medical history. The California Department of Social Services distributes SSI and other supplemental payments to more than 1 million people, 68 percent of whom have disabilities.
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" News Reviews to Peruse"
Number 85 March 2001
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 SAYS STATE ADA PLAINTIFFS MUST FOREGO DAMAGES - The U. S. Supreme Court handed down a much- anticipated decision on February 21st affecting the rights of state employees under the ADA. In Board of Trustees of the University of Alabama, et al. v. Patricia Garrett, et al., the Court decided that employees of state government may not sue their employers in federal courts under the ADA for monetary damages. See the full story in the “ Annotations” section of this month’s newsletter.
MUNICIPAL EMPLOYEE’S DISCHARGE UPHELD - The discharge of an employee of the City of Chicago who was arrested and charged with cocaine possession was upheld by the U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) despite the employees claim that his termination violated the ADA. The employee, who was not convicted of the charge, sought to return to ADA News No. 85 - 19- March 15, 2001
work following a one- week inpatient program at a drug rehabilitation center. The city terminated him for violation of its personnel rules, and the employee brought this lawsuit. The lawsuit was dismissed by the trial court, which observed that the ADA does not protect current drug users. The employee appealed, claiming uniquely that his addiction “ created a wholly involuntary need to possess drugs,” and that this “ compulsion resulted in his termination by the Defendant.” The Appellate Court rejected this claim and affirmed summary judgment, observing: “ As the Supreme Court has noted, ‘ even among many who consider alcoholism a “ disease” to which its victims are genetically predisposed, the consumption of alcohol is not regarded as wholly involuntary.’… This observation is equally true of drug addiction.” The Court concluded, “[ w] hether or not his alleged disability of drug addiction created a wholly involuntary need to possess drugs, [ the employee] made a conscious choice to actually possess drugs. We therefore have little trouble separating his misconduct from his alleged disability.” Pernice v. City of Chicago, CA7, No. 00- 1865, 1/ 11/ 01 ( http:// laws. lp. findlaw. com/ 7th/ 001865. html).
MARTIN GETS HIS DAY IN COURT - On Wednesday, January 17th, golfer Casey Martin made his way into the chambers of the U. S. Supreme Court, where argument in his and fellow- golfer Ford Olinger’s cases were to be heard by the Court. Both golfers are trying to compel the Professional Golfers Association to allow them to use golf carts, made necessary by their disabilities, on the professional tour. The PGA charges that using a cart fundamentally alters the nature of the game. Martin’s attorney Roy L. Reardon disagreed, saying that walking is not essential as demonstrated by the PGA Tour’s own practices. Vehicles ferry players between holes at some tournaments to speed up play, including an event in Hawaii, stated Reardon. Moreover, players in qualifiers - tournaments in which players compete to be on of the 168 players included on the tour - all use carts all of the time, as did Martin. Justice Souter queried, “ If the people who make the rules for the PGA Tour say, ‘ We want to make this particular game tougher than regular golf games,’ … why shouldn’t we respect it?” Justice John Paul Stevens countered, asking, “ What puzzles me is how it can be a fundamental rule and not apply in the qualifying events … If logistics are sufficient to justify the use of a cart, why isn’t this handicap sufficient?” The PGA responded by stating that where carts are used, they are used by all players, not just a few. Clinton administration lawyer Barbara Underwood argued in Martin’s support, saying that the Act was intended to sweep broadly. ( For an excellent analysis of the issues in this case, browse to the article on the MSNBC website at http:// www. msnbc. com/ news/ 514143. asp.) A decision is expected by this summer. PGA Tour, Inc. v. Martin, USSCt No. 00- 24.
IF AT FIRST YOU DON’T SUCCEED - A California hospital must continue to engage in an interactive process with an employee with obsessive compulsive disorder ( OCD), even after a totally flexible work schedule offered by the employer as an accommodation failed, held the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU). “ The employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed,” stated the Court. The employee, a medical transcriptionist, had excellent performance ratings, but her OCD requiring a morning ritual lasting for up to three hours caused numerous attendance problems. The hospital accommodated her by permitting her to report to work any time during the 24- hour period she was scheduled to work, but she continued to miss work when the time for her ritual extended for as long as eight hours. The hospital rejected the employee’s request to work from home, although other employees had been allowed to do ADA News No. 85 - 20- March 15, 2001
so, and she was terminated. The Court drew attention to the fact that other employees worked from their homes, and to EEOC guidelines on reasonable accommodation that suggest that “[ w] orking at home is a reasonable accommodation when the essential functions of the position can be performed at home and a work- at- home arrangement could not cause undue harm for the employer.” Humphrey v. Memorial Hospitals Association, CA9, No. 98- 15404, 2/ 13/ 01 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ 04485f8dcbd4e1ea882569520074e698/ abd495f0e26fa48e882569f200608b6b? OpenDocument).
PRESIDENT BUSH ISSUES “ NEW FREEDOM INITIATIVE” - On February 1st, President Bush released his $ 1.025 billion, five- year plan to boost the
independence of the nation’s disabled: the “ New Freedom Initiative.” The program is designed to “ help Americans with disabilities by increasing access to assistive technologies, expanding educational opportunities, increasing the ability of Americans with disabilities to integrate into the workforce, and promoting increased access into daily community life.” “ Old barriers are falling away,” said President Bush. “ We must speed up the day when the last barrier has been removed to full and independent lives for every American with or without disability.” The policy is a blueprint for the administration’s increased investment in disability- related programs. See the document at http:// www. whitehouse. gov/ news/ freedominitiative/ freedominitiative. html. President Bush’s transition team was also presented with a copy of Investing in Independence: Transition Recommendations for President George W. Bush, issued by the National Council on Disability, which can be found at http:// www. ncd. gov/ newsroom/ publications/ bush. html.
STATE MAN NAMED TO NCD - Gerald S. Segal of Haverford, Pennsylvania, a partner in the law firm of Segal, Wolf, Berk, Gaines and Liss, was named January 3rd by President Clinton to the National Council on Disability. Mr. Segal is president of Fight for Sight of Greater Philadelphia, and a board member of Magee Rehabilitation Hospital. Mr. Segal also served on the Mayor’s Commission on People with Disabilities. The NCD is an independent federal agency making recommendations to the President and Congress on disability policy and representing all people with disabilities.
PENNSYLVANIA FAMILY SUING SCHOOL OVER SON - A school district and the family of an 11- year- old with Tourette’s syndrome are facing off in federal court over how to educate the boy after he threatened a classmate and pushed a table at his principal. Tourette’s, which doctors think may be caused by improper levels of chemicals in the brain, causes repeated twitches, movements or noises. Often are harmless, they can escalate to include obscene language or sexual gestures. Jim and Mary Brennan of Langhorne want their 11- year- old son Timothy educated in a regular classroom. The parents say his most noticeable tic is to constantly clear his throat. He also repeats phrases and sometimes blurts out vulgarities, they said. The family is suing the Neshaminy School District in Bucks County, which wants to put him in a special- education classroom. For now, Timothy, who was diagnosed with Tourette’s when he was 5, is tutored at home ten hours a week by an instructor paid by the district. Last March, Timothy encountered a student in his elementary school hallway after classes and blurted a threat. Afterward, the Brennans met with the school’s principal, where Timothy shoved a table at the principal. Nick Iampietro, Neshaminy’s supervisor for special education, said staff and students have learned about Tourette’s syndrome in an effort to better understand Timothy’s behavior. “ The schools are in a quandary about what to do,” Iampietro said. “ You have to balance the student’s right to a fair and appropriate public ADA News No. 85 - 21- March 15, 2001
school education - the fact that it is a disability - against the goal of promoting a safe environment in the school for students and staff.” Researchers estimate Tourette’s affects one in 2,000 people.
MARLA RUNYAN SETS U. S. 5000 RECORD - In a special event arranged by the New York Road Runners Club, Marla Runyan, a U. S. Olympic finalist at 1500 meters last year in Sydney, broke the U. S. indoor record for 5000 meters. Runyan bettered the previous mark set by 1992 Olympic bronze medalist, Lynn Jennings, in 1990. Runyan, who is legally blind, has Stargardt’s disease, a form of macular degeneration, which first appeared when she was nine years old. “ I’ve been living, running and competing with it for more than 20 years,” says Runyan. “ It hasn’t slowed me down.” Runyan is a member of the U. S. Association of Blind Athletes, and is the national spokesperson for “ The Gift of Sight,” a non- profit charity that collects and distributes eyeglasses to adults and children in developing countries. Get to know Marla better at http:// www. marlarunyan. com.
SPANISH PARALYMPIC BASKETBALL TEAM MUST RETURN GOLD MEDAL - Following charges that standards for competition were not adhered to, the International Paralympics Committee ( IPC) has suspended the International Sports Organization for Athletes with an Intellectual Disability ( INAS- FID) from membership. A committee was established in December to investigate the eligibility of members of the Spanish basketball team for the intellectually disabled games. The intellectually disabled are defined as individuals having a mental impairment that substantially limits one or more of their major life activities. The investigation found that 10 of the 12 players on the Spanish men’s basketball team were not intellectually disabled. The Spanish team, which won the gold in the Sydney 2000 paralympic games, was asked to return its medal. In addition, Fernando Martin Vicente, president of the INAS- FID was suspended from the IPC Executive Committee. “ It is our responsibility to all Paralympic athletes to provide fair competition,” said Robert Steadward, president of IPC.
UNITED ARTISTS SETTLES SEAT SUIT - United Artists Theater Circuit must provide better seating for patrons with disabilities in stadium- style theaters, under a lawsuit settlement reached with the Justice Department in January. The settlement is a major victory for disability rights advocates who have long argued that the they are unable to reach the best seats in stadium theaters. The Justice Department and several disability groups sued United Artists, one of the nation’s largest theater chains, under the ADA. Under the agreement, UA must locate wheelchair seating in which viewing angles are as good as the best 50 percent of the seats in the house, and must locate wheelchair seating no closer to the screen than the back of the aisle separating traditional seats from stadium seats. Read the agreement at http:// www. usdoj. gov/ opa/ pr/ 2001/ January/ 026cr. htm.
DISABILITIES WEBSITE OF THE MONTH - “ DisWeb”, a new website created by Candy & Charles Creative Concepts, serves as host for several disability- related organizations, including the California Disability Alliance. In addition, DisWeb features a collection of interesting articles on diverse topics such as travel, universal design, and the “ socio- economic aspects of disablement.” “ DisWeb is a platform for issues of concern to people with disabilities and others who wish to increase their awareness of these issues.” Take a look at DisWeb at http:// disweb. org/# about.
SO, WHO’S ELIGIBLE UNDER THE ADA? - Query: I don’t have a disability, a record of a disability, nor am I perceived or regarded as having a disability. My employer has just announced that everyone in the ADA News No. 85 - 22- March 15, 2001
company is required to undergo a periodic routine company medical examination. May I bring a lawsuit against my employer for violation of my rights under the ADA? The answer, at least according to the EEOC and some courts, is “ yes.” The Act provides that an employer “ shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination is shown to be job- related and consistent with business necessity.” It is the position of the EEOC that the use of the word “ employee,” as opposed to “ qualified individual with a disability” indicates that Congress intended that the law prevent all frivolous medical inquiries. See Roe v. Cheyenne Mountain Resort, CA10, No. 98- 1138, 2/ 19/ 99 ( http:// www. kscourts. org/ ca10/ cases/ 1999/ 02/ 98- 1138. htm); see, also, the EEOC Enforcement Guidance on Disability- Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act ( ADA) at http:// www. eeoc. gov/ docs/ guidance- inquiries. html.
RUGRAT KIMI OWES VOICE TO BRAILLE- READING ACTRESS - You’ll have to be the parent of a small child to appreciate this. The actress who provides the voice for new toddler “ Kimi” on Nickelodeon’s “ Rugrats” television show is Dionne Quan, a 22- year- old actress. Quan, who is blind, was born with hypoplasia, or underdeveloped optic nerves. She converts her scripts from the studio to Braille, then mostly memorizes them. “ Kimi” was introduced in the movie “ Rugrats in Paris,” and has become a regular on the popular kids show, now enjoying its tenth season. Quann started acting at fourteen, and has done voices for commercials, CD- ROM games and other animated series. According to the Screen Actors Guild, approximately 650 of its more than 100,000 members have some type of disability.
AREA CALENDAR -
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Distance Learning Program teleconferences: “ Accommodating Employees with Psychiatric Disabilities” ( March 20); “ To Complain or Not to Complain: Unraveling the Options” ( April 17); “ Surfing for Electronic Access” ( May 15); “ Documentation of Disability” ( June 19); sponsored by the ADA Information Center for the Mid- Atlantic Region; for info, contact the ADAIC at 800- 949- 4232 ( V/ TTY), or visit its training site at http:// www. adainfo. org/ resources. html# distance.
RESOURCES - Some disability/ employment- related resource material recently added to the catalogue. Publications from the Equal Employment Opportunity Commission ( EEOC) can be ordered at http:// www. usdoj. gov/ crt/ ada/ publicat. htm, or by calling 1- 800- 514- 0301( V) or 1- 800- 514- 0383( TTY).
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The Access Board in October published accessibility guidelines for newly built or altered play areas under the ADA. The guidelines apply to play areas provided at child care facilities, schools, parks and other facilities. The guidelines are available from the Board’s website at http:// www. access- board. gov/ news/ playrule. htm, or can be obtained in print from the ADA Information Center at 800- 949- 4232 ( V/ TTY).
ANNOTATION -
Supreme Court Issues Garrett Decision ( Ed.) 1. Supreme Court Issues Garrett Decision
Not much suspense remained for those who were following the decisions of the U. S. Supreme Court in the employment arena. Since the mid- 1990' s, resolutely applying the principle of state immunity, the Court had reigned in the power of Congress to regulate conduct at the state level, and had restricted access to federal courts for employees of state governments seeking to sue their employers. The trend was epitomized most dramatically last year by the Court’s 5- 4 decision in Kimel v. Florida Board of Regents ( 528 U. S. 62 ( 2000)). In Kimel, the Court decided that state governments are immune from suit by their employees in federal court under the Age Discrimination in Employment Act ( ADEA) because in enacting the law, Congress had failed to abrogate state immunity under the 11th Amendment. Following that decision, circuit courts including the U. S. Court of Appeals for the Third Circuit, had made it more difficult for state employees to gain entry to the federal courthouse.
So, when the Court accepted two cases last term brought by employees against their state employers under the Americans with Disabilities Act of 1990 ( ADA) ( 42 U. S. C. § 12111- 12117), many saw the handwriting on the wall. Though both cases settled before the Supreme Court heard argument, it didn’t take long to find two like cases for review. The joined cases - captioned Board of Trustees of the University of Alabama, et al. v. Patricia Garrett, et al. ( 531 U. S. ___ ( 2001), USSCt. No. 99- 1240, 2/ 21/ 01) - involved employees suing their Alabama state employers seeking monetary damages under Title I of the ADA, which prohibits public and private employers from discriminating against qualified individuals with disabilities regarding the terms, conditions and privilege of employment. 42 U. S. C. § 12112( a). The case engendered much public attention. Protest demonstrations were held both before and during the arguments. Friend- of- the- court briefs were received from numerous organizations and individuals, including former- President George Bush ( who signed the ADA into law), Senator Ted Kennedy and former- Senator Bob Dole, each of whom urged the Court to uphold the constitutionality of the ADA. Arguments were held last October in a Supreme Court chamber packed with advocates, many in wheelchairs and some accompanied by assistance animals. Following a spirited debate between the Court’s conservative justices and attorneys representing the employees, however, for most it was not whether the Court would further limit state employees’ access to federal courts, but how much.
When the Court issued its long- awaited decision on February 21st, disabilities advocates were discouraged and legal observers unsurprised. As expected, the Court, by the same 5- 4 majority as in Kimel, found that Congress, in enacting the ADA, had failed to properly abrogate states’ immunity under the 11th Amendment; thus, employees of state government are barred from suing their employers for monetary damages in federal court under the Act. Chief Justice William Rehnquist’s opinion, a spare 17 pages long, was joined in by Justices Scalia, Thomas, O’Connor and Kennedy ( who wrote a concurring opinion), with Justice Breyer authoring the dissent, joined by Justices Stevens, Souter and Ginsberg. Following the line in Kimel and others, the majority allowed that while Congress may abrogate states’ 11th Amendment immunity, it may do so only “ when it both unequivocally intends to do so and ‘ act[ s] pursuant to a valid grant of constitutional authority.’” Conceding that the first prong of this criterion had been met,
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the Court analyzed whether Congress had acted within its constitutional authority. It found that authority lacking.
Observing that Congress could not base its authority to abrogate states’ immunity on Article I of the Constitution ( Seminole Tribe v. Florida, 517 U. S. 44 ( 1996)), the Court went on to explain why Section 5 of the 14th Amendment likewise failed to provide a sufficient basis for the law. According to principles articulated in City of Boerne v. Flores ( 521 U. S. 507 ( 1997)), the Court held that a law like the ADA must exhibit “ congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Further, the Court held that, because people with disabilities are not a “ quasi- suspect” class, it could apply a minimum “ rational basis” review, i. e., wherever there is a “ rational relationship between the disparity of treatment and some legitimate government interest,” there is no constitutional violation. The Court found that evidence accumulated during Congressional hearings prior to passage of the ADA simply had not shown a “ pattern of irrational state discrimination in employment” against people with disabilities and, therefore, the Act failed the “ congruence and proportionality” test. In a revealing comment, the Chief Justice stated that it would be “ entirely rational ( and therefore constitutional)” for a state employer to hire only able- bodied employees, who could use existing facilities, instead of persons with disabilities, in order to save the financial resources which would have to be expended to accommodate the latter. “ States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational,” he wrote. States “ could quite hardheadedly - and perhaps hardheartedly - hold to job qualifications requirements which do not make allowance for the disabled.”
Justice Breyer’s 57- page dissent included three appendixes in which he set forth a detailed catalogue of the evidence of discrimination amassed by Congress, in a graphic refutation of the majority’s opinion that only “ minimal evidence” of discrimination had been examined. Justice Breyer argued that it has been clear since the Civil War that the federal government has the power to protect civil rights nationwide, criticizing the majority for ignoring the historical record and for applying such “ harsh” restraining rules on the power of Congress to enact remedial legislation. “ There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its § 5 [ 14th Amendment] authority, to adopt rules or presumptions that reflect a court's institutional limitations,” Justice Breyer wrote. “ The Court, through its evidentiary demands, its nondeferential review, and its failure to distinguish between judicial and legislative constitutional competencies, improperly invades a power that our Constitution assigns to Congress,” he summarized.
So now we must ask ourselves, how does this decision change our roles as state attorneys and employees vis- à- vis disabilities law, and person with disabilities specifically? The decision was written more narrowly than some anticipated. Advocates for the disabilities community were quick to point out that, although the decision was generally a negative one from their perspective, the Court did preserve some important aspects of the law, and states are still required to comply with the law. Notably, the Court declined to rule on the constitutionality of Title II of the ADA, the section of the Act best known for requiring state and municipal governments to make their programs, facilities and services accessible to persons with disabilities, and there is reason to believe that, if Title II were subject to review by this Court, the result may be different. Garrett, Footnote 1. ( Title II includes a provision generally prohibiting discrimination by any public entity, and the circuits are divided on whether employment claims are available under this title.) Therefore, individuals can still sue state governments for injunctive relief and damages under that part of the statute. Second, the Court held only that an employee cannot sue a state employer in federal court for monetary relief - prospective injunctive relief under Title I is still available, and an injunctive award could possibly include attorneys fees. Third, the federal government may still sue a state government for employment discrimination under Title I of the ADA, a procedure normally carried out by the Equal Employment Opportunity Commission ( EEOC). Garrett, Footnote 9. Fourth, the decision did not affect the rights of employees of local and other non- state governmental units from suing their employers. Fifth, federal lawsuits under Section 504 of the Rehabilitation Act are still permissible, where federal funding is involved. Sixth, case law suggests that an ADA claim can be brought in state court, even for monetary damages, where a state has waived its immunity from suit in a similar claim. Finally, and perhaps most important, the provisions of the Pennsylvania Human Relations Act virtually mirror those of the ADA.
The Supreme Court’s decision is being hailed by conservative groups. In particular, attorneys in the offices of Alabama Attorney General Bill Pryor are celebrating their third big Supreme Court victory in recent months. In all three, they have argued that the federal government has only limited power over the states and succeeded. “ I’m proud of the fact that I defended the rights of my state,” Pryor said. But such persistent success is a bad omen for people with disabilities, and for civil rights advocates generally. The decision could make other facets of the ADA more vulnerable to legal challenge, and raises the bar for similar legislation by Congress in the future. “ Congress needs to reassert its democratic prerogatives and restore the rights of ordinary Americans, said Senator Patrick Leahy, Democratic chair of the Senate Judiciary Committee. “ These rights have been taken away by an increasingly activist and formalistic Supreme Court.” Of course, it remains to be seen how this decision will be interpreted by the lower courts.
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" News Reviews to Peruse"
Number 86 April 2001
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.
BE CAREFUL WHAT YOU SAY - Sometimes how we tell an employee news about her status is more important than what we tell her. Witness a case being heard in the Eastern District of Pennsylvania. The case involves a box maker for a company called Apollo Metals. In February 1996, the employee injured his back in Apollo’s parking lot. When he returned to work a weeks later, his physician had placed limits on the amount of weight he could carry. Apollo placed him in a light- duty position, but the employee’s back problems continued to worsen, and he ceased work on the recommendation of his physicians in June. He returned to work in September, again with restrictions and in a light- duty position, and in November his physicians informed him that he would be permanently unable to return to his box maker position. In May 1997, Apollo discharged the employee. He was informed by letter that he could no longer be provided with light duty, and that Apollo “ cannot accommodate you within the Box Maker position or ADA News No. 86 - 27- April 15, 2001
any other vacant position and [ has] no position that meets your limited physical capabilities.” Responding later to a union grievance filed by the employee, Apollo agreed to rescind the termination letter and instead place the employee “ on workers’ compensation.” One month later, his physical condition improved, the employee presented Apollo with a list of positions he could fill, but was informed by Apollo that there were no positions within his capabilities available at that time. In February 1999, approved to return to work without restriction, the employee resumed working at Apollo. The employee sued Apollo, however, alleging that Apollo had unlawfully terminated his employment in 1997 in violation of the ADA and the Pennsylvania Human Relations Act. Apollo moved to dismiss, arguing that the employee did not have a disability. Citing the decision of the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) in Marinelli v. City of Erie (“ ADA News” No. 78, August 2000, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 78. htm), the court agreed that the employee did not have an impairment that substantially limited a major life activity, and that he had no record of a disability. It declined to dismiss the employee’s claim that he was “ regarded as having such a physical or mental impairment.” ( Under the Act, “ a person is regarded as having a disability if the person has a physical or mental impairment that does not substantially limit major life activities but is treated by the covered entity as constituting such limitation.” 42 U. S. C. § 12102( 2)( C)( 1).) The court found the explanations Apollo gave the employee for not reinstating or accommodating him to be conflicting and noted disputed facts about position vacancies at Apollo during the time the employee was off work. In addition, the court observed that the employee’s 1997 termination letter highlighting the employee’s “ limited physical capabilities” indicated a possible perception of disability by Apollo. The court let the case go to the jury on this basis. Even though Apollo could have been acting reasonably all along, informing the employee in this way that there were no jobs for him certainly contributed to the case going forward. Buskirk v. Apollo Metals, 116 F. Supp. 2d 591 ( EDPa. 2000) ( http:// www. paed. uscourts. gov/ documents/ opinions/ 00D0713P. HTM).
WEIGHT- LIFTING RESTRICTIONS - Proving a disability solely as a result of a weight- lifting restriction is a tough case to make. The issue was virtually settled in Pennsylvania by the decision of the U. S. Court of Appeals for the Third Circuit last year in Marinelli v. City of Erie ( see above), where the court found that a ten- pound weight restriction was insufficient to show a disability under the Act. Recently, the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) also “ weighed” in on the issue, in a case in which the Court similarly found a 15- pound restriction to be insufficient. The claimant, who was under physician’s orders to not lift more than fifteen pounds due to an arm injury, was assigned light duty by her employer, Federal Express, but was later terminated. She sued FedEx under the ADA, but her suit was dismissed by the federal trial court for failure to prove the presence of a disability under the Act. The Appellate Court affirmed, stating that a “ general lifting restriction imposed by a physician, without more, is insufficient to constitute a disability.” Mellon v. Federal Express Corporation, CA8, No. 00- 1606, 2/ 12/ 01 ( http:// www. ca8. uscourts. gov/ opndir/ 01/ 02/ 001606P. pdf).
MORE ‘ REGARDED AS’ CLARIFICATION - The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) added its voice to those analyzing the “ regarded as” provision of the Act in a recent case involving a Ford Motor Company assembly line worker. The Act provides that a person has a disability if the person is “ regarded as” having a disability. A person is “ regarded as” having a disability if ( 1) a covered entity mistakenly believes that the person has a physical impairment that substantially limits one or more major ADA News No. 86 - 28- April 15, 2001
life activities, ( 2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities, or ( 3) the person has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment. The worker was fired following a fairly impressive record of ailments stretching over several years and resulting in numerous extended absences ( the worker had 23 absences, amounting to approximately 70 weeks of absence, in three years). The worker sued, alleging a violation of the Act, and the federal trial court dismissed. The Appellate Court found that the worker had failed to prove that he is a person with a disability entitled to protection under the ADA. While conceding that he does not have a disability or a record of a disability, the worker asserted that Ford fired him because it regarded him as having a disability. The Court expressed that it is not enough for a worker to show that an employer knew of the worker’s impairment; a worker must also show that the employer believed that one or more of the worker’s major life activities were substantially limited by his impairment. The Court found no evidence that Ford, even if it knew about the worker’s latest medical problem ( hepatitis B), saw the worker as substantially limited in a major life function. Amadio v. Ford Motor Co., 238 F. 3d 919 ( 7th Cir. 2001)( http:// www. ca7. uscourts. gov/ fox/ foxweb. exe/ ca7/ Op3? yr= 99& num= 3728& Submit1= Request+ Opinion).
FOR BENEFITS MANAGERS AND THEIR ATTORNEYS - A decision issued by a federal district court in Georgia last year should give you something to think about. A former employee of United Parcel Service sued UPS for violating the ADA when it terminated him. In part, the employee alleged that he was terminated because UPS “ regarded” him as a person with a disability, and discriminated against him on that basis. As proof, the employee offered a disability benefits application that the benefit plan administrator for UPS had sent to the employee after the administrator had been informed of the employee’s assignment to an alternative job because of lifting restrictions that had been placed on the employee. The court found that the benefit form was sent to all employees who went out on disability, including those who worked at other jobs but were unable to perform their particular job for employer. The inventive employee ( or his attorneys) also tried to prove a “ regarded as” claim by asserting that UPS’s payment of workers’ compensation benefits to the employee established that UPS regarded him as having a disability. The court dismissed this as well, finding that UPS had initially denied benefits, and had paid benefits only upon the order of a judge. Greene v. United Parcel Service, Inc., 125 F. Supp. 2d 517 ( M. D. Ga. 2000).
‘ RECORD OF’ DISCRIMINATION DECISIONS - While we’re looking at definitions of disability other than the primary one - an impairment substantially limiting a major life activity - it might be helpful to discuss the third part of the ADA definition, a record of such impairment. Appellate courts have not seen nearly as many claims under this prong as the other two. No “ block busting” decision has been issued that sets the tone for courts generally. However, some lower tribunals have looked at the issue of late, and a review of some decisions might be helpful. In Horwitz v. L & J. G. Stickley, Inc., 122 F. Supp. 2d 350 ( N. D. N. Y. 2000), the New York court found that an employee’s brief hospitalization for bipolar disorder and six weeks of psychiatric center care was insufficient to constitute a “ record of disability” that substantially limited her ability to engage in one or more of her major life activities, and thus did not support a prima facie case of disability discrimination under the ADA. A state appellate court in Texas dismissed a “ record of” claim, stating that in order to prevail on a record of disability claim under the ADA, the employee had to show that he had a history of, or had been misclassified as having, a mental or physical impairment ADA News No. 86 - 29- April 15, 2001
that substantially limited one or more major life activities. Kiser v. Original, Inc., 32 S. W. 3d 449 ( Tex. App. Houston 14th Dist. 2000). Also in the Longhorn State, a federal district court in Texas reviewed a claim by employees of Exxon Corporation who alleged they were adversely impacted by Exxon’s drug and alcohol policy barring rehabilitated substance abusers from certain safety- sensitive jobs. The court held that company information regarding employees’ substance abuse histories did not constitute a “ record of” a disability within the meaning of ADA, even assuming that the effects of the employees’ prior substance abuse constituted substantial limitations on the their major life activities, because there was no evidence that Exxon had relied on such information to discriminate against the employees. ( The court added that there was no proof that rehabilitation by itself constituted an impairment that substantially limited any major life activity.) E. E. O. C. v. Exxon Corp., 124 F. Supp. 2d 987 ( N. D. Tex. 2000). Finally, a federal court in Missouri held that a production job applicant did not have “ record of impairment” as a result of a “ neurometry test” used by her employer to disqualify the applicant on the ground that her possible median nerve impairment placed her at risk of developing carpal tunnel syndrome ( CTS). According to the Court, the test was developed exclusively for evaluation of applicants at the facility, and merely showed that she was at risk of developing CTS if she performed specific high speed and strenuous assembly line and inspection work, not that she could not perform any work. E. E. O. C. v. Woodbridge Corp., 124 F. Supp. 2d 1132 ( W. D. Mo. 2000). The analysis in these cases seems to be twofold - first, determining if there is a record of disability; and second, determining whether the record was used improperly.
HOSPITAL AND JUSTICE REACH AGREEMENT - A hospital in Utah agreed earlier this year to provide sign language interpreters and other auxiliary aids and services to patients, their family members, and their companions who are deaf or hard of hearing under a settlement agreement finalized by the DOJ. The settlement was in response to a complaint filed with the DOJ alleging that the hospital discriminated against a deaf patient and his wife, who is also deaf, in violation of the ADA. The complainant alleged that during two time periods in 1998 when her husband was a patient at the hospital it refused to provide a sign language interpreter, despite the couple’s repeated requests. The agreement requires the hospital to establish a program to provide appropriate auxiliary aids and services, including sign language interpreters, to patients, their family members, and their companions who are deaf or hard of hearing. For the full text of the DOJ Press Release, see http:// www. usdoj. gov/ opa/ pr/ 2001/ January/ 037cr. htm.
EEOC CHALLENGES GENETIC TESTING - On February 9, 2001, the EEOC filed a Petition for a Preliminary Injunction against Burlington Northern Santa Fe Railroad urging the end of genetic testing of employees who have filed claims for work- related injuries based on carpal tunnel syndrome. The EEOC alleged that the employees were not told of the genetic test, or asked to consent to it, and that at least one individual who refused to provide a blood sample because he suspected it would be used for genetic testing had been threatened with imminent discharge if he failed to submit the sample. The EEOC’s position is that basing employment decisions on genetic testing violates the ADA. The EEOC points out that employers may only require employees to submit to medical examinations if those examinations are job related and consistent with a business necessity. The EEOC stated that “ any test which purports to predict future disabilities, whether or not it is accurate, is unlikely to be relevant to the employee's present ability to perform his or her job.”
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“ SORRY, MA’AM, BUT ‘ FEAR OF SNAKES’ IS NOT A DISABILITY” - The U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) last November affirmed a trial court that dismissed the ADA claim of a hospital switchboard operator who claimed her “ fear of snakes” entitled her to the protections of the ADA. When the operator learned that a snake had been seen in her work area, she refused to return to work for several months. The hospital finally transferred her to a lower- paying job in another building, but she sued, claiming that the hospital’s act violated the ADA. The hospital’s motion to dismiss was granted, and this appeal ensued. The Appellate Court reversed the trial court on the hospital’s motion based on 11th Amendment immunity, finding that the hospital was immune under the Act because it is a state entity. The Court continued on, however, to address the question whether the operator was a qualified person with a disability. The operator claimed that she was substantially limited in the major life functions of working and “ driving a car.” ( The Court was extremely dubious about the latter.) She stated that “ her condition prevents her from working in an environment where snakes may be present and that any encounter with a snake will render her completely hysterical, thus limiting her ability to drive.” The Court brushed aside both, finding that she had not shown she was limited from working in a broad class of jobs by her fear of snakes, and that any impairment in driving was temporary and, therefore, not “ substantial.” The Court refused also to credit her “ regarded as” claim. Anderson v. North Dakota State Hospital, 232 F. 3d 634 ( 8th Cir. 2000) ( http:// www. ca8. uscourts. gov/ opndir/ 00/ 11/ 993329P. pdf).
DISABILITIES WEBSITE OF THE MONTH - “ Cornucopia Of Disability Information,” or “ CODI,” sponsored by the State University of New York at Buffalo, is indeed a cornucopia of information about disabilities and related topics. “ CODI serves as a community resource for consumers and professionals by providing disability information in a wide variety of areas,” displays the website, and it makes good on its promise. Arranged in directory format ( think of “ Yahoo”) with several topical areas, it also sports a search function that works across topics. Content- rich categories include “ Aging,” “ Traveling With a Disability,” “ Assistive Technology,” “ Communication,” “ Government Documents,” and “ Computing.” An excellent resource for the practitioner and consumer alike, the site is worth a visit, and maybe a bookmark. Bobby approved. Check it out at http:// codi. buffalo. edu.
H. U. D. WEBSITE PROVIDES 504 INFORMATION - Former U. S. Housing and Urban Development Secretary Andrew Cuomo today announced in January that HUD is launching a new web site and distributing notices to better explain the rights of people with disabilities who are seeking housing, and the responsibilities of those who house them. The web site at http:// www. hud. gov/ fhe/ fheacss. html provides a wealth of practical information about Section 504 of the Rehabilitation Act of 1973. Section 504 prohibits discrimination based on disability in any federally funded program, including housing and community development.
REASSIGNMENT ACCOMMODATION NOT POSSIBLE - The U. S. Postal Service was recently found to have not violated the ADA and Rehabilitation Act when it refused to reassign an employee with a disability - arachnoiditis, a degenerative spinal disease - to a particular position he had requested as an accommodation. The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) affirmed a lower- court dismissal of the employee’s claims that the Service had discriminated against him when it refused to reassign him. The Court found that the employee was not qualified for the reassignment because his disability would have prevented him from performing the essential functions of the new position, even with ADA News No. 86 - 31- April 15, 2001
an accommodation. “ While it is true that an employer may redistribute marginal functions of a job to other employees, an employer is not required to reallocate essential functions ‘ that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position,’” held the Court, citing federal regulations. Further, the Court found that the Service was not required to place the employee in a position on which it had placed an “ informal hold” on filling pending the upgrading of equipment. “ We do not believe that a reasonable accommodation means that an employer is required to fill a position which, based on a reason wholly independent of the employee’s disability, it had chosen not to fill,” stated the Court. “ Such a position is not ‘ vacant’.” The Court affirmed because the employee “ failed to identify a vacant position at the Postal Service for which he was otherwise qualified.” Ozlowski v. Henderson, CA7, No. 00- 1079, 1/ 17/ 01 ( http:// www. ca7. uscourts. gov/ fox/ foxweb. exe/ ca7/ Op3? yr= 00& num= 1079& Submit1= Request+ Opinion).
CLASS TRANSFER ACCOMMODATES - “ Teenage girls love Bath & Body Works fragrances, but the perfumes irritate high school geology teacher Chad Deremer. Deremer is allergic to the products and develops skin problems So he sent a stern letter to his students this week prohibiting them from wearing or carrying lotions or perfumes from Bath & Body Works or Victoria’s Secret. Violators will be kicked out of class, he warned. The letter also stated that Deremer had the right to forbid students from wearing any other product that might inflame his allergies.” Read the story from the January 19, 2001 edition of Cleveland’s The Plain Dealer at http:// www. cleveland. com/ news/ index. ssf?/ news/ pd/ cc19perf. html; then read the paper’s skeptical editorial response at http:// www. cleveland. com/ news/ opinion/ index. ssf?/ news/ opinion/ editorials/ g21scent. html.
AREA CALENDAR -
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Americans with Disabilities Act Briefing; April 19- 20, 2001; Washington, DC; sponsored by National Employment Law Institute ( NELI), ( 303) 861- 5600, or http:// www. neli. org.
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Employment Discrimination and Civil Rights Actions in Federal and State Courts; May 10- 12, 2001; Boston, MA; sponsored by American Law Institute- American Bar Association Committee on Continuing Professional Education ( ALI- ABA), ( 800) 253- 6397, or http:// www. ali- aba. org.
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Americans with Disabilities Act Workshop; September 24, 2001; Washington, D. C.; sponsored by National Employment Law Institute ( NELI), ( 303) 861- 5600, or http:// www. neli. org.
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Americans with Disabilities Act Workshop; October 1, 2001; New York, NY; sponsored by National Employment Law Institute ( NELI), ( 303) 861- 5600, or http:// www. neli. org.
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Advanced Employment Law and Litigation; November 29- December 1, 2001; Washington, D. C.; sponsored by American Law Institute- American Bar Association Committee on Continuing Professional Education ( ALI- ABA), ( 800) 253- 6397, or http:// www. ali- aba. org.
COCAINE- ADDICTED ATTORNEY’S DISBARMENT STANDS - A Maryland attorney, disbarred for misappropriation of clients’ funds and submitting fabricated documents to Bar Counsel, appealed his disbarment alleging that it violated the ADA because he was addicted to cocaine at the time. The ADA News No. 86 - 32- April 15, 2001
Maryland Court of Appeals found that the attorney was not a “ qualified individual with a disability” who would be protected by the ADA from disbarment as the attorney had committed disciplinary offenses which also constituted criminal conduct and was therefore not “ qualified” to be a member of the Bar. In re Marshall, 762 A. 2d 530 ( D. C. 2000).
STATE SETTLES ATTORNEY’S PARKING LAWSUIT - A lawyer has settled her lawsuit against the Connecticut Department of Motor Vehicles for charging fees on handicapped parking permits. The lawyer, who has a genetic disability that has impeded her growth and causes brittle bones, sued the DMV in August 1996 for imposing a $ 5 fee for five years on handicap placards. She said the policy violated the ADA, which prohibits public entities from imposing surcharges on disabled residents in order to comply with federal ADA requirements. “ This action sets a standard for other states with handicap parking fees but also sends a powerful message about our commitment to rights of the disabled and it provides real resources for protecting those rights,” said state Attorney General Richard Blumenthal. There are some 16 states with pending cases involving fees for handicapped placards, Blumenthal said. The state DMV had stopped enforcing the fee in 1998 and Blumenthal said the settlement will permanently end the policy.
CHANGE IS SLOW AT UNIVERSITY - “ How a Landmark Anti- Bias Law Changed Life for Disabled Students - At one university, services and facilities that were once unimaginable are now commonplace.” Read about the experience of one university - Purdue - in making its services available to persons with disabilities. From The Chronicle of Higher Education, at http:// chronicle. com/ free/ v47/ i20/ 20a02301. htm.
ANNOTATION - “ Imagine: You Complete Your Site and Then Discover … You Forgot Accessibility," from eBiz Update, Vol. 2, Issue 8, February 19, 2001.
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“ Imagine: You Complete Your Site and Then Discover... You Forgot Accessibility”
Here’s how to handle an emerging requirement for Web design By Bernard Sherman and Terence de Giere Human Factors International, Inc., http:// www. humanfactors. com.
It’s taken awhile, but webmasters are starting to get the hang of designing Web sites that work for most users. But don’t rest yet: webmasters will soon need to add a completely new set of Web design skills. Increasingly, Web sites will have to accommodate disabled users.
Disabled users? That’s right. Even people with no sight at all can “ hear” the Web, through special browsers that read out the code on Web pages. New US regulations require that all Federal sites ( and the sites of Federal contractors) work in this format. Other countries are adopting similar rules, and non- government sites are increasingly coming under pressure from users to offer options for the disabled.
You can experience first- hand the problems that face a visually impaired user by trying out a demonstration page at the Human Factors International ( HFI) Web site, http:// www. humanfactors. com/ accessibility/ chocolateaudio. asp. As you’ll find, these users are presented ADA News No. 86 - 33- April 15, 2001
with a speech- synthesized reading of the HTML code. What usually dominates is not the content of the site but the scaffolding: “ Table. Table row. Table row … indent. Table … row …." Interspersed among minutes of such code are a few bits of the actual content of the site. And whenever there’s a graphic, visually impaired users hear only the word “ graphic.”
How can you give these users a more satisfying Web experience? Here are some steps you can take:
1) Visit the “ Accessibility” section of the Human Factors International ( HFI) Web site for an introduction and orientation to the problem ( http:// www. humanfactors. com/ accessibility/ default. asp).
2) Download the freeware called “ Bobby” at http:// www. cast. org/ bobby/ . This program, sponsored by such players as IBM, Microsoft, and Sun Microsystems, will analyze your HTML and tell you where it’s inaccessible. The tool is effective for basic accessibility problems. Improved versions are forthcoming for deeper issues of accessibility.
3) Study the World Wide Web Consortium’s Web Accessibility Initiative at
http:// www. w3. org/ WAI/ for the most extensive information on creating Web pages that accommodate accessibility.
HFI’s simple tips for accessibility:
Tip One: Give each graphic an Alt tag that gives a clear description of the image for those who cannot see it. ( This step may also improve search- engine placement.)
Tip Two: Use relative font sizes so visually impaired users can bump up the font size on the page. Many elderly users cannot read the small fonts on many Web sites.
Tip Three: Provide detailed text alternates for multimedia content.
Tip Four: Provide server- side equivalents for browser- side scripting - special access browsers and screen readers may not support JavaScript, or may not process certain kinds of scripted routines.
Tip Five: Test your Web pages with special browsers - audio browsers, text- only browsers, and screen readers.
Tip Six: Provide an accessible version of your site. Some organizations, like NINDS ( the National Institute of Neurological Disorders and Strokes, http:// www. ninds. nih. gov/), now offer two Web sites- one for ordinary users, the other for the disabled. The link to the disabled site is placed at the beginning of the main site, so disabled users can find it quickly. Special technology automatically updates the content on the disabled site whenever the main site is changed.
There’s no reason to complain about the new Web- accessibility regulations. As Tim Berners- Lee, the inventor of the Web, says, “ The power of the Web is in its universality. Access by everyone regardless of disability is an essential aspect.” A hallmark of civilization is how it uses technology to benefit all people. You can become part of the new standard by raising your own site’s accessibility. New technologies will emerge in coming years to make it easier; but even now, there are plenty of resources available to help ou make your sites accessible to any user whatsoever.
y ADA News No. 86 - 34- April 15, 2001
ADA News No. 86 - 35- April 15, 2001
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" News Reviews to Peruse"
Number 87 May 2001
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.) ( pbair@ 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.
DISABILITY- BASED HARASSMENT COGNIZABLE UNDER ADA - The U. S. Court of Appeals for the Fifth Circuit ( TX, LA, MS) has held that a cause of action for disability- based harassment exists under the ADA where an HIV- positive former employee brought an action against her employer alleging a hostile work environment and wrongful discharge. The Court found that there was sufficient evidence of record to support a finding that the employer had harassed the employee. The employee, a medical assistant, claimed that she was terminated because of her disability ( HIV) and also that she was subjected to “ harassing conduct” designed to “ force [ her] from her position or cast her in a false light for the purpose of terminating her because of her HIV status.” A jury determined in 1998 that the employee’s disability was not a motivating factor in the employer’s decision to terminate her employment, but that the employee was subjected to disability- based harassment that created a hostile work environment. The ADA News No. 86 - 36- April 15, 2001
employer appealed, and argued that no cause of action under the ADA existed for disability- based harassment. The Court disagreed, determining that the ADA embraces claims of disability- based harassment and that a cause of action for disability- based harassment is viable under the Act. The Court stated that after a review of the ADA’s language, purpose, and remedial framework, Congress’s intent in enacting the ADA was, among other things, to eradicate disability- based harassment in the workplace. The Court, modeling the cause of action after a similar claim brought under Title VII, ruled that in order to succeed on a claim of disability- based harassment under the ADA, a plaintiff must prove that: ( 1) she belongs to a protected group; ( 2) she was subjected to unwelcome harassment; ( 3) the harassment complained of was based on her disability or disabilities; ( 4) the harassment complained of affected a term, condition, or privilege of employment; and ( 5) the employer knew or should have known of harassment and failed to take prompt, remedial action. Flowers v. Southern Regional Physician Services Inc., CA5, No. 99- 31354, 3/ 30/ 01 ( http:// www. ca5. uscourts. gov/ opinions/ pub/ 99/ 99- 31354- cv0. htm).
SUPREME COURT TO HEAR TWO MORE ADA CASES - The U. S. Supreme Court has announced that it will hear arguments next term in two controversial cases involving the ADA. A case from the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) - US Airways v. Barnett, CA9, No. 96- 16669, 10/ 4/ 00 ( http:// www. ce9. uscourts. gov/ web/ newopinions. nsf/ 4bc2cbe0ce5be94e88256927007a37b9/ 01a05fe96ce695858825696e005eec46? OpenDocument)( citation below)( see “ ADA News” No. 81, 11/ 15/ 00, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 81. htm) - involved the effect of seniority provisions on reasonable accommodations. The Ninth Circuit Court found that an employee who cannot perform his or her former job because of a disability, but is qualified for another job in the company, is entitled to the new job unless reassignment would cause the employer an “ undue hardship.” There is a split among the circuits on this question. The Supreme Court has agreed to hear only the question involving seniority systems.
The second case accepted for review is Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, CA6, No. 99- 5234, 7/ 10/ 00 ( http:// caselaw. lp. findlaw. com/ cgi- bin/ getcase. pl? court= 6th& navby= case& no= 00a0223p)( citation below) ( see “ ADA News” No. 81, 11/ 15/ 00, http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 81. htm). This case, that involved an assembly- line worker with carpal tunnel syndrome, raised the question “ should [ the worker’s] inability to perform certain manual tasks bring her within the coverage of the Act?” The Sixth Circuit Court found that the worker did have a disability, finding that “[ h] er ailments are analogous to having missing, damaged or deformed limbs” that precluded her from working in a broad class of jobs. The Supreme Court will decide the question “ whether repetitive stress injury is an impairment under the ADA that prohibits discrimination.” See U. S. Supreme Court October 2001 docket at http:// www. supremecourtus. gov/ orders/ 01grantednotedlist. pdf.
EEOC SUES WAL- MART ( AGAIN) - The U. S. Equal Employment Opportunity Commission has filed its fifth lawsuit against Wal- Mart Stores Inc. since January 16th. In the latest case, filed in Raleigh, North Carolina, the EEOC alleged that officials at a Wal- Mart warehouse in Hope Mills, N. C., refused to hire a deaf man, because of his disability. This case joins four others filed in the past 17 days in Fayetteville, Cleveland, Alexandria, Va., and Yreka, Calif. All five suits accuse Wal- Mart of violating the ADA. A Wal- Mart spokesman defended the company, saying that the retailer would like to comment on the cases ADA News No. 86 - 37- April 15, 2001
because “ we’re proud of our hiring policies and our record of employing disabled Americans.” The Raleigh suit seeks back pay and compensatory and punitive damages, and also seeks an order prohibiting Wal- Mart from engaging in any employment practices that discriminate against applicants on the basis of disability. “ We’re concerned about multiple incidents of discrimination against persons with disabilities [ at] that company,” said David Grinberg, spokesman for the Commission. “ Particularly against individuals who are deaf or hard of hearing.” The Commission has eight disabilities- act cases pending against Wal- Mart, Grinberg said.
More recently, the federal government asked a federal judge to punish Wal- Mart Stores Inc. over claims it failed to comply with terms of a discrimination settlement involving two deaf job applicants. The EEOC said this month it has asked a U. S. District Judge in Tucson, Arizona to declare Wal- Mart in contempt of court and impose sanctions. A hearing is set for May 29th. See the story at http:// news. findlaw. com/ ap/ f/ 1310/ 5- 11- 2001/ 20010511195632580. html.
RETALIATION LAWSUIT GOES FORWARD - The U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) has refused to dismiss Plantation, Florida city officials from an ADA retaliation case. The Mayor of the City ofPlantation, the President of the City Counsel, the City Finance Director and the City Attorney, who were named as defendants along with the City in a case brought by well- known disabilities advocate Frederick A. Shotz, attempted to be dismissed from the lawsuit under governmental immunity provisions for public officials. According to Shotz, he was asked by a member of the Plantation City Counsel to review a new city government facility for ADA violations. Shotz did as asked and without charge provided to the Counsel Member a written report detailing several violations of the ADA Accessibility Guidelines. According to the complaint, the four named defendants, using City funds, then hired a private detective to investigate Shotz including videotaping him “ as he went about his daily life including going onto Shotz’s property to videotape him.” The defendants then “ published the investigator’s findings and a portion of the videotape for the purpose of retaliating against and intimidating or threatening Shotz.” The federal lawsuit alleges violations of Title II of the ADA, Section 1983 of the Civil Rights Act, and the First Amendment to the United States Constitution. The Appellate Court articulated the standard for their decision as “ whether every reasonable [ city] official in the same circumstances would have known in the light of the preexisting law that his actions violated [ Shotz’s constitutional] rights. In other words, were the actions so obviously wrong, in light of preexisting law, that only a plainly incompetent [ city] official or one who was knowingly violating the law would have done such a thing.”
FAMILY OPPORTUNITY ACT REINTRODUCED - The Family Opportunity Act ( FOA) was re- introduced on February 8th by a bi- partisan group of members of Congress that led the effort for its enactment last year. Senators Grassley ( R- Iowa) and Kennedy ( D- Mass.) are the two major sponsors in the Senate and Representatives Sessions ( R- Texas) and Waxman ( D- Calif.) are the two major sponsors in the House. Sessions, the parent of a young son with a disability, has taken the lead on FOA, working with Waxman and others on both sides of the aisle in the House, to get the bill to the floor for a vote. The bills failed to reach a vote last year due to opposition by Senate and House leadership. The goal of the FOA is to give more children with disabilities access to a broad range of health care services and supports by allowing states to offer middle- income families of children with disabilities ( up to 300 percent of the government poverty level) the option of buying into Medicaid. Currently, these children are ineligible because their families are over the income cap. ADA News No. 86 - 38- April 15, 2001
NAADAC CONFERENCE EXCEEDS EXPECTATIONS - The DEP Disabilities Services Team ( DST) was privileged to attend the annual conference of the National Association of ADA Coordinators ( NAADAC) last month in Washington, DC. The Department has been a member of NAADAC for several years. The conference brought representatives from the EEOC and U. S. Access Board; U. S. Departments of Justice, Transportation and Education; as well as persons from various non- governmental disabilities- related professions together to present valuable information generally organized into three tracks: “ Employment Issues,” “ College and University Issues,” and “ Accessibility and Transportation Issues.” The following points of interest were discussed in the employment track:
! John Wodatch ( DOJ) and Chris Kuczynski ( EEOC) were in agreement that the law permits employers to “ re- visit” accommodations currently benefitting employees in order to ascertain the employee’s present need for the accommodation, dependent on the “ quality of the indicia” used to invoke the revisitation process. Care must be taken to administer such a process equally, and not as a tool for harassment.
! Many employers in Californi