ADA news news reviews to peruse.

              ADA NEWS
2002
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" News Reviews to Peruse"
Number 95 January 2002
Items regarding disabilities law and 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 recent issues can be found online at http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ adanews_ index_ 2001. htm. All past issues of this publication are archived at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP internal website.
ADA News No. 95 - 1- January 16, 2002
ADA News No. 95 - 2- January 16, 2002
SUPREME COURT LIMITS MEANING OF “ DISABILITY” - In a not unexpected decision, the U. S. Supreme Court has ruled against an employee whose carpal tunnel syndrome made it difficult for her to work at her assembly line position. The decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, USSCt., No. 00- 1089, 1/ 8/ 02 ( see ADA News No. 87, 5/ 15/ 01 ( http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ada_ news_ 87_ frontpage. htm), was a victory for employers trying to limit the impact of the Act. “ Merely having an impairment does not make one disabled for purposes of the ADA,” wrote Justice Sandra Day O’Connor for a unanimous Court. “ To qualify as disabled, a claimant must further show that the limitation on the major life activity is ‘ substantia[ l].’ … ‘ Substantially’ in the phrase ‘ substantially limits’ suggests ‘ considerable’ or ‘ to a large degree,’ and thus clearly precludes impairments that interfere in only a minor way with performing manual tasks.” Williams had argued that, while she was not prevented by her carpal tunnel syndrome from performing a variety of personal and household tasks, it nevertheless prevented her from performing manual tasks necessary for her job. The Court, however, saw the issue in the case as “ whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job,” and whether “ the impairment’s impact [ is] permanent or long- term.” Justice O’Connor observed that Williams “ could still brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry, and pick up around the house.” While the decision does not foreclose the possibility that another individual’s carpal tunnel syndrome could be a disability under the ADA, it certainly sets the bar higher for those individuals, as well as anyone with an impairment that does not provide obviously substantial limitations. “ This decision is going to give employers a lot of confidence that they can challenge workers on whether they are disabled,” said Kathleen Blank, a National Council on Disability attorney. “ It’s clearly a decision in favor of employers, giving them more latitude to refuse to make accommodations.” Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, USSCt., No. 00- 1089, 1/ 8/ 02 ( http:// a257. g. akamaitech. net/ 7/ 257/ 2422/ 08jan20021100/ www. supremecourtus. gov/ opinions/ 01pdf/ 00- 1089. pdf).
COURT ISSUES EEOC v. WAFFLE HOUSE DECISION - It has been a busy week for the U. S. Supreme Court. Fast on the heels of its decision in Toyota, the Court on January 15th issued its decision in EEOC v. Waffle House ( see ADA News No. 94, 12/ 15/ 01, http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ada_ news_ 94_ frontpage. htm), a case that asked whether an agreement between an employer and employee to arbitrate employment- related disputes bars the EEOC from suing the employer on the employee’s behalf. The Court decided 6- 3 ( Rehnquist, C. J., Scalia, J. and Thomas, J. dissenting) that such an agreement does not bar the EEOC from pursuing victim- specific judicial relief, such as back pay, reinstatement, and damages in an ADA enforcement action. Because the EEOC is not a party to the employment contract and has independent statutory authority to bring suit in any federal district court where venue is proper, the agency is not bound by the terms of a contract entered into between the employee and employer. EEOC v. Waffle House, Inc. USSCt. No. 99- 1823, ADA News No. 95 - 3- January 16, 2002
1/ 15/ 02 ( http:// a257. g. akamaitech. net/ 7/ 257/ 2422/ 15jan20021055/ www. supremecourtus. gov/ opinions/ 01pdf/ 99- 1823. pdf).
HIGH COURT ACCEPTS YET ANOTHER ADA CASE - The U. S. Supreme Court on January 11th agreed to review the decision of the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) in a case that decided whether municipalities are subject to punitive damages for their failure to accommodate people with disabilities. The case below - Gorman v. Easley, CA8, No. 00- 1029/ 00- 1030, 6/ 13/ 01 ( http:// www. ca8. uscourts. gov/ opndir/ 01/ 06/ 001029P. pdf) - involved a man who uses a wheelchair who was arrested for trespassing by Kansas City, Missouri police. Police officers moved him in a police van despite his protestations that the van was not equipped to move him safely. He suffered shoulder and back injuries while being taken to jail, and sued the city under the ADA and the Rehabilitation Act for failure to accommodate his disability. The city did not contest a $ 1 million actual damage award, but appealed the $ 1.2 million in punitive damages awarded by the trial jury. The Appellate Court refused to dismiss the award, but invited review of its decision by the Supreme Court in view of a conflict with the U. S. Court of Appeals for the Sixth Circuit ( MI, OH, KY, TN). The Supreme Court case is docketed as Barnes v. Gorman, No. 01- 682 ( http:// www. supremecourtus. gov/ docket/ 01- 682. htm).
BBVS MAJOR ACCOMPLISHMENTS IN 2001 - “ During Federal Fiscal Year 2001, the Bureau of Blindness and Visual Services ( BBVS) increased the number of persons placed in competitive employment by 10 percent. BBVS Rehabilitation Counselors successfully rehabilitated 489 customers in FFY2001. 3,469 individuals were provided services in this program during the year. Over the past two years, the Bureau has nearly tripled the number of persons served through the Independent Living Older Blind program. This number has risen from 1,081 in 1999 to 2,965 in FFY 2001. Special commendation goes out to BBVS Social Workers across the Commonwealth for their hard work! The Bureau served 1,320 persons through their Specialized Services Adult Program during FFY 2001. BBVS field staff also provided services to 1,068 children during this time period. Congratulations to BBVS Vocational Rehabilitation Counselors, Rehabilitation Teachers, Orientation & Mobility Instructors, and Social Workers!” ( From OVeRVIEW, the Pa. Labor & Industry Office of Vocational Rehabilitation online newsletter, http:// www. dli. state. pa. us/ landi/ lib/ landi/ pdf/ ovr/ overview12- 14- 01. pdf).
“ BRIDGING THE DIGITAL DIVIDE” - UCP ( United Cerebral Palsy) of Central Pennsylvania has launched a program designed to bring more accessible computer terminals to public libraries in the area. Called “ Bridging the Digital Divide,” the project is supported by a federal grant as part of a U. S. Department of Commerce initiative. The first workstation installed under the program debuted last month at the East Shore Library of the Dauphin County Library System. The program will eventually include nine other libraries in Carlisle, Lancaster, Lebanon and other Central Pennsylvania locations. ( UCP Central PA was recently named as number nineteen of the “ 100 ADA News No. 95 - 4- January 16, 2002
Best Place to Work in PA,” an award created last year by the Ridge- Schweiker Administration.) Http:// www. ucp. org/ ucp_ localdoc. cfm/ 132/ 9396/ 9404/ 9404- 9404/ 2954.
DISABILITIES WEBSITE OF THE MONTH - Take a look at the website of the “ Disability Social History Project” for a fascinating insight into the history of disabilities and people with disabilities. The Disability History Project describes itself as, “ an opportunity for disabled people to reclaim our history and determine how we want to define ourselves and our struggles. People with disabilities have an exciting and rich history that should be shared with the world … Disability has existed since the beginning of time. The ways in which people with disabilities have been treated and represented in art and media varies dramatically throughout history and among different cultures. Disabled people have been revered or ascribed with superhuman characteristics in some cases and disparaged, tortured, and even systematically murdered in others. People with disabilities also have a long history of attempting to better their situation through self- advocacy and self- determination.” Wow! This site is filled with information, including biographies of famous people with disabilities ( Helen Keller, Harriet Tubman, Frida Kahlo, and Rosa Luxemborg), a history of disability and the disability rights movement, and information on disability- related institutions. This website is truly “ not to be missed.” Browse now to http:// www. disabilityhistory. org. You will not be disappointed.
EEOC WILL CONTINUE TO INVESTIGATE STATE CHARGES - The EEOC has instructed its regional offices to continue to accept and investigate charges filed against state governments, despite the decision of the U. S. Supreme Court in University of Alabama, et al. v. Garrett, in which the High Court found that states are not subject to suits for monetary damages brought by their employees under Title I of the Act. The EEOC plans to continue to refer these cases for mediation, and will discus possible litigation of meritorious cases with the U. S. Department of Justice. In addition, several states have waived their sovereign immunity for these suits, and legislation to do so is pending in others.
NORTH CAROLINA WAIVES ADA IMMUNITY - With the signature of Governor Michael Easley, North Carolina joined Minnesota in waiving its sovereign immunity to lawsuits by state employees under the ADA and the Age Discrimination in Employment Act ( ADEA). North Carolina’s “ State Employee Federal Remedy Restoration Act” imposes certain caps on damages, and applies also to suits under the Family Medical Leave Act and Fair Labor Standards Act.
FAMILY SUPPORT ACT PASSES STATE HOUSE - On November 20, 2001, the Pennsylvania House of Representatives unanimously passed the Family Support Act ( H. B. 1655), legislation intended to assist in the establishment of services for families of children with developmental disabilities.
ADA News No. 95 - 5- January 16, 2002
SIXTH CIRCUIT REVERSES COURSE ON TITLE II - The U. S. Court of Appeals for the Sixth Circuit, sitting en banc, has reversed its earlier decision in which it found that Title II of the ADA could not constitutionally be applied to a state defendant. ( See ADA News No. 80, 10/ 15/ 00, http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ adanews_ 80. htm.) “ We conclude that the plaintiff’s action is barred by the Eleventh Amendment in so far as the action relies on congressional enforcement of the Equal Protection Clause,” wrote Circuit Judge Merritt for a divided Court, “ but it is not barred in so far as it relies on congressional enforcement of the Due Process Clause. As applied to the plaintiff’s cause of action, Title II is ‘ appropriate legislation’ under section 5 and the Due Process Clause of section 1 of the Fourteenth Amendment.” Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Division, CA6, Nos. 98- 4100/ 4540, 1/ 10/ 02 ( http:// pacer. ca6. uscourts. gov/ cgi- bin/ getopn. pl? OPINION= 02a0009p. 06).
AREA CALENDAR -
􀂉 Public meeting of Presidential Task Force on Employment of Adults with Disabilities; 9- Noon, January 28, 2002; U. S. Chamber of Commerce headquarters, Washington, DC; panel will discuss President Bush’s “ New Freedom Initiative,” among other topics; info at PTFEAD website, http:// www. dol. gov/_ sec/ programs/ ptfead/ main. htm
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Equal Access to Software & Information ( EASI) has four online courses beginning February 4: “ Beginner Barrier- free Web Design,” “ Advanced Barrier- free Web Design,” “ Barrier- free Information Technology,” and “ Business Benefits of Accessible Information Technology;” EASI is a provider of online training on making computers and information technology for persons with disabilities; registration and syllabus are available from the main course page at http:// easi. cc/ workshop. htm
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National Association of ADA Coordinators Spring 2002 National Conference; April 23 - 26, 2002; San Diego Marriott Mission Valley Hotel, San Diego, CA; conference will feature prominent speakers and workshops covering a variety of topics in four tracks: Employment, College/ University, Accessibility, and Transportation; required pre- registration deadline is April 17 ( early- bird discount is available for registrations made by February 18); more information at 1- 800- 722- 4232, or naadac@ aol. com
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“ Providing Culturally Competent Disability Services;” May 6 - 8, 2002; Washington, DC; international conference to examine issues related to providing rehabilitation services to persons born in other countries and of differing cultures; sponsored by the Center for International Rehabilitation Research Information and Exchange ( CIRRIE); information and a call for papers available at http:// cirrie. buffalo. edu/ conference/ CIRRIE2002
ADA News No. 95 - 6- January 16, 2002
UPS FAILS TO ENGAGE IN INTERACTIVE PROCESS WITH DRIVER - The U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) has reversed a lower court decision dismissing the ADA claim of a United Parcel Service warehouse worker. The worker, who is deaf, applied for a position as a driver. UPS requires all of its drivers to be certified by the U. S. Department of Transportation ( DOT), a certification denied to the worker because of her hearing impairment. The worker, who was otherwise qualified to be a driver, asked UPS to modify its policy as a reasonable accommodation to allow her to drive smaller UPS vehicles for which the DOT certification was not necessary, but was refused. She resigned her position and sued UPS, charging that its across- the- board prohibition discriminated against her. The trial court granted UPS summary judgment, but the Appellate Court reversed, finding that the company had failed to engage the worker in an interactive process following her request for accommodation and had improperly denied her request for accommodation. ( The opinion contains an interesting discussion of the “ business necessity” defense under the ADA.) Morton v. United Parcel Service, Inc. CA9, No. 99- 17447, 11/ 30/ 01 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ C5B60AB901073A8D88256B1400537A04/$ file/ 9917447. pdf? openelement).
FIRED SUPERVISOR SUCCEEDS IN REVERSING TRIAL COURT - A fired warehouse supervisor with Type I diabetes was successful in his attempt to have a trial court’s dismissal of his ADA claim reversed on appeal. The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) found that the lower tribunal had erred when it found the supervisor not to be a qualified individual with a disability. The Appellate Court found that the supervisor’s difficulty in controlling his worsening diabetic condition could amount to a substantial limitation on the major life activities of thinking and caring for himself to the extent that a factual issue was created, making the case inappropriate for summary judgment. Nawrot v. CPC International, n/ k/ a Bestfoods, Inc., CA7, No. 00- 2849, 1/ 11/ 02 ( http:// laws. lp. findlaw. com/ 7th/ 002849. html).
DIABETIC WORKER POSED A DIRECT THREAT TO OTHERS - The U. S. Court of Appeals for the Ninth Circuit affirmed a lower court’s decision dismissing the ADA claim of a worker at an Oregon facility of a Pennsylvania chemical manufacturer who had several severe diabetic episodes while on the job. The worker was responsible for handling large volumes of chlorine gas and liquid chlorine, and was required to work rotating shifts, which interfered with his ability to control his diabetes. The Court found that, even if the chances were small of the worker experiencing a diabetic episode on the job that would cause a loss of consciousness, the consequences of an accident were catastrophic. Since the record showed that “[ n] one of the examining or consulting physicians could rule out the occurrence of a hypoglycemic event that would affect [ his] ability to remain conscious, alert, and communicative, especially in light of [ the worker’s] somewhat erratic medical history,” the risk of his having such an episode was real and immediate. Using the four- part EEOC test for direct threat, the Court found the worker to be a direct threat to others and, thus, not a qualified individual with a disability. Hutton v. Elf Atochem ADA News No. 95 - 7- January 16, 2002
North America, Inc., CA9, No. 00- 35683, 11/ 28/ 01 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ A86720895D48DA8088256B12005F595F/$ file/ 0035683. pdf? openelement).
AMAZON. COM DEBUTS NEW ACCESSIBLE WEBSITE - Last month, Amazon. com launched “ Amazon Access,” an alternative version of its commercial website designed to make online shopping easier for customers using screen access software. Found at http:// www. amazon. com/ access, the site is a streamlined version of Amazon. com’s standard website with less text and fewer graphics, providing access to Amazon. com’s full line of products and personalization features. The text and user functions are advertised as being fully compatible with screen access software, which reads aloud the text and links displayed for the user.
NCD YOUTH ADVISORY COMMITTEE SOLICITS INPUT - The Youth Advisory Committee of the National Council on Disability ( NCD), chartered in January 2000 to provide advice to the NCD on a wide variety of issues impacting the lives of children and youth, is soliciting youth input on a draft paper. The paper, posted at http:// www. ncd. gov/ newsroom/ advisory/ youth/ speakout. html, addresses five topical areas: Education; Social Security, Rehabilitation & Health Care; Transportation; Employment; and Voting. “[ The] paper is a first effort by the NCD Youth Advisory Committee to call nation- wide attention to youth and young adult perspectives across a number of issues that impact the disability community.” Http:// www. ncd. gov/ newsroom/ advisory/ youth/ youth. html.
ON A ROLL TALK RADIO ON LIFE & DISABILITY - “ Live, Sundays 6- 8 p. m. on 39 radio stations and the Internet, ‘ On A Roll’s’ URL http:// www. onarollradio. com will point you directly to a new and improved site within iCan, a virtual disability community. On A Roll now airs on the Radio America network and would like to connect with local organizations in each of our markets to develop strategies for promoting the show in your community. Check the website for stations airing the program in your area. Judy Heumann, a former assistant secretary for the U. S. Department of Education during the Clinton administration will host a show once a month starting January 13. Check the site to get Judy’s on- air schedule.” ( From January’s ADA Update, a publication of the Pennsylvania ADA Coalition, http:// www. psu. edu/ dept/ aaoffice/ PADAC.)
PARKING PLACARDS NO LONGER AVAILABLE ON E- BAY - A mini- scandal threatened to engulf online retailer “ eBay” last week, when some folks found so- called “ handicapped parking placards” being offered for auction on the website. The counterfeit placards, advertised as “ novelty items,” were apparently near- perfect replicas of state government- issued placards, and displayed no indication that they were fakes. Fast action by disability advocates ( notably Frederick Shotz of ADA Consulting Associates) convinced eBay attorneys that it would be in their interests to stop allowing the sale, and the sale disappeared from the website soon after. In many states it is a criminal violation to use a counterfeit parking permit, and printing placards using the design as shown in federal regulations published by the United States Department of Transportation is a federal felony. A change in eBay’s policy on acceptable merchandise is xpected.
e ADA News No. 95 - 8- January 16, 2002
ADA News No. 96 - 9- February 16, 2002
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" News Reviews to Peruse"
Number 96 February 2002
Items regarding disabilities law and 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 recent issues can be found online at http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ adanews_ index_ 2001. htm. All past issues of this publication are archived at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP internal website.
SO, JUST WHO IS THIS “ AVERAGE PERSON”? - An interesting decision recently came to my attention involving a Court’s efforts to determine whether an individual’s impairments were sufficiently serious for that person to be a person with a disability under the Act. The case evolved from a tragic mass shooting that took place in a Tulsa, Oklahoma Wendy’s in 1994. The U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, NM, KS, OK) looked at a Title I claim of a man who sustained a brain injury in that shooting in order to determine whether he was ADA News No. 96 - 10- February 16, 2002
“ substantially limited” in a major life activity. The Court looked for guidance to EEOC regulations that provide that “ a person suffers a substantial limitation if he is either unable to perform or significantly restricted in performing a major life activity ‘ that the average person in the general population can perform.’ 29 C. F. R. § 1630.2( j).” Therefore, the Court compared his abilities to those of the average person in the general population. Significantly, the Court made no comparison to the abilities the individual possessed prior to his injuries. The lesson to be learned here is that when making a determination, one should not compare a person’s abilities to the level of abilities the person had prior to an injury, but to the level of those abilities held by others. Because the claimant in this case continued to function well compared to others, even though not as well as before his injuries, he was not substantially limited and, therefore, did not have a disability for purposes of the ADA. Bowen v. Income Producing Management of Oklahoma, Inc., CA10, Nos. 98- 5037 and 98- 5051, 2/ 1/ 00 ( http:// www. kscourts. org/ ca10/ cases/ 2000/ 02/ 98- 5037. htm).
SUPREME COURT HEARS ARGUMENTS - Now that we have decisions in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and EEOC v. Waffle House, you are probably all wondering what is happening with the “ other” ADA case on the U. S. Supreme Court’s calendar. Oral arguments in US Airways v. Barnett ( U. S., No. 00- 1250) were heard by the Court on December 4th. ( See ADA News No. 94, 12/ 15/ 01, http:// intradep/ ChiefCounsel/ ADANews/ ada_ news_ 94/ ada_ news_ 94_ frontpage. htm.)
COURT FINDS HIV DIRECT THREAT - The U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) has affirmed the dismissal of a case brought by a Florida dental hygienist who was asked to take a non- hygienist position when it was discovered that he tested positive for HIV. The hygienist’s dental practice, after putting him on leave and researching the matter, determined that he presented a direct threat to its patients, and offered him a clerical position as an accommodation. Waddell v. Valley Forge Dental Association, CA11, No. 00- 14896, 12/ 21/ 01 ( http:// www. law. emory. edu/ pub- cgi/ print_ hit_ bold. pl/ 11circuit/ dec2001/ 00- 14896. opn. html? waddell# first_ hit).
FIRED HIV- POSITIVE TEENAGER GETS SETTLEMENT FROM GROCERY CHAIN - A 16- year- old grocery clerk, who was fired when she told her store manager that she tested positive for HIV, will receive $ 90,000 - $ 1,000 in back pay and $ 89,000 in emotional damages - in settlement of her ADA lawsuit against the store. The clerk worked one day in the store - until she informed the manager that she would have to take her breaks at certain ADA News No. 96 - 11- February 16, 2002
times in order to take HIV medication. The AIDS Resource Center of Wisconsin helped the teenager file a complaint with the EEOC, which found reasonable cause that a violation of the Act had occurred. The teenager, whose biological mother died in 1994, was born with the virus.
DISABILITIES WEBSITE OF THE MONTH - You should know that, now that the Winter Olympics are drawing to a close, the Winter Paralympics can’t be far behind. The 2002 Paralympic Games will be held in salt Lake City from March 7- 13. And what better time to visit the website of the National Sports Center for the Disabled? Now thirty- two years old, the Center is a non- profit organization that provides year- round sports activities for more than 3,000 adults and children with disabilities every year. “ Our programs allow people with disabilities to take part in a sport, often for the very first time,” says NCSD founder Hal O’Leary. “ The success our participants experience helps them in their day- to- day life. They know that they can overcome their obstacles, achieve their goals, and reach their full potential.” Visit the site and, while you’re there, read about all of the NCSD- trained athletes who are heading to Salt Lake City. Http:// www. nscd. org.
FORMER EMPLOYEE ALLOWED SUIT UNDER TITLE I - The U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) decided last November that a former Kmart employee should not be prevented from suing under Title I of the ADA even though not currently employed. The Court based its decision, reversing precedent, on the decision of the U. S. Supreme Court in Robinson v. Shell Oil Co., 519 U. S. 337 ( http:// caselaw. lp. findlaw. com/ scripts/ getcase. pl? court= us& vol+ 000& invol= 95- 1376), a 1997 case in which that Court found that a former employee had similar rights under Title VII of the Civil Rights Act of 1964. The former Kmart manager, who stopped working after 30 years due to chronic depression, is suing because the retailer’s disability insurance policy would end his coverage after two years, while providing coverage for those with physical illnesses until age 65. A split in the circuits on the question whether differentiating coverage between persons with mental and physical illnesses violates the ADA could bring the question to the U. S. Supreme Court. Johnson v. K Mart Corp., CA11, No. 99- 14563, 11/ 21/ 01 ( http:// www. law. emory. edu/ pub- cgi/ print_ hit_ bold. pl/ 11circuit/ nov2001/ 99- 14563. opn. html? johnson+ and+ kmart# first_ hit ).
WAL- MART SETTLES CLAIMS - In the past several issues, I have reported on a number of Title I lawsuits brought by applicants and employees of retailing giant Wal- Mart. The EEOC has announced that Wal- Mart agreed on December 17th, literally the eve of trial, to pay $ 6.8 million to settle thirteen ADA lawsuits brought on behalf of applicants for positions in eleven states. Among other charges, the complaints alleged the applicants were asked to complete applications that sought disability- related information, in violation of the Act. It is believed to be one of the largest ADA News No. 96 - 12- February 16, 2002
settlements by the government with a corporation under the Act. Go to http:// www. eeocvwalmart. com for more information on these cases.
SITE- SPECIFIC DEPRESSION NOT A DISABILITY - The claim of a firefighter employed by the U. S. Army that he “ suffers from the disability of depression caused by ‘ the stress and anxiety of having to work with certain employees’” at a particular location where he was asked to work temporarily was dismissed in December by the U. S. Court of Appeals for the Fifth Circuit ( TX, LA, MS). The firefighter, who had filed fifty- one unsuccessful EEOC complaints during his fifteen- year employment, claimed he had a disability - chronic depression - and was also “ regarded as” having a disability. The Court found that his evidence of disability “ is not sufficient to create a jury question as to whether he was disabled,” and found no evidence whatsoever to support his “ regarded as” claim. Aldrup v. Caldera, Secretary of the Army, CA5, No. 01- 50369, 12/ 10/ 01 ( http:// laws. lp. findlaw. com/ 5th/ 0150369cv0. htm).
HHS REPORT SENT TO PRESIDENT - Health and Human Services Secretary Tommy Thompson sent a status report of the agency’s progress in implementing President Bush’s “ New Freedom Initiative” to President Bush on December 21, 2001. The report - “ Delivering on the Promise: Preliminary Report of Federal Agencies’ Actions to Eliminate Barriers and Promote Community Integration” - can be found at http:// www. hhs. gov/ newfreedom/ prelim.
CAREER OPPORTUNITY - The American Foundation for the Blind, a national nonprofit whose mission is to eliminate the inequities facing the ten million Americans who are blind or visually impaired, is seeking an advocate in its Governmental Relations office in Washington. A job announcement can be found at http:// www. afb. org/ employment_ detail. asp? jobid= 100 or interested applicants can e- mail resumes and writing samples to afbgov@ afb. net.
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).
Some useful web- based resources, courtesy of Bill Ritzman, Executive Director of the Pennsylvania ADA Coalition:
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Emergency Preparedness - The Access Board has posted on its website information and resources for preparing the workplace to accommodate employees and visitors in times of emergency or disaster. The site is at http:// www. access- board. gov/ evac. htm.
ADA News No. 96 - 13- February 16, 2002
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Sneak Peak: Self- Employment - The Small Business Administration is developing a web site for entrepreneurs with disabilities. To visit this work in progress, go to http:// sbaresearch. org.
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ADA Watch Coalition - This online community of individuals and organizations defending the ADA can be found at http:// adawatch. org.
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Disability History - The Disability History Museum’s library features searchable archives with historic images, documents and other artifacts. To visit this web site go to http:// disabilitymuseum. org.
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I. T. Works Grant Web Page Announcement, Law, Health Policy & Disability Center - The Law, Health Policy & Disability Center has a new web page for the I. T. Works project which began on November 1, 2001. The web page is located at http:// www. its. uiowa. edu/ law/ projects/ it_ grant. htm.
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Careers in the Arts Listserv - The Kennedy Center for the Arts has a Listserv designed for people with disabilities interested in careers in the arts. Members of this Listserv will receive periodic announcements about job and funding opportunities in the arts across the nation, as well as information about training programs and other issues of interest to individuals pursuing careers in the arts. In addition, members of this Listserv will receive the new Careers in the Performing Arts for People with Disabilities newsletter. To subscribe to this free listserv go to: http:// artsedge. kennedy- center. org/ user_ guide/ commcent/ listservs. html and check the box next to “ Careers in the Arts for People with Disabilities( ARTSFORUM).”
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SignTel: Virtual Interpreter - For a demonstration of newly available software program that translates speech and print into ASL, visit the web site at http:// signtelinc. com/ demo. htm
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House Trade Article - Anthony Tusler details ( with editing and photographs supplied by his wife, Lyndi) their experiences in finding and trading wheelchair accessible “ vacation” homes in an article published by “ Disability World.” Anthony and Lyndi have traded their home in Sonoma Valley, California with a wheelchair user in England, and spent a month in Warborough ( near Oxford). “ Disability World,” a web based magazine, is found at http:// www. disabilityworld. org.
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Airline Security & Disability Rights - The Department of Transportation has issued a fact sheet to address concerns about airport security for passengers with disabilities. The basic premise is that passengers with disabilities should still expect nondiscriminatory treatment as required by the Air Carrier Access Act ( ACAA), but a thorough security screening does not violate the ACAA. Members of the public, who ADA News No. 96 - 14- February 16, 2002
feel they have been the subject of discriminatory actions or treatment by air carriers, may file a complaint by sending an e- mail to the Aviation Consumer Protection Division ( ACPD) at airconsumer@ ost. dot. gov. The ACPD’s website is at http:// www. dot. gov/ airconsumer
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Commercial Market for Artists with Disabilities - For information about the USA division of the Mouth and Foot Painting Artists, visit their international website at http:// www. amfpa. com or e- mail at admin@ mfpausa. com
Thanks, Bill!
ATLANTA PUBLIC TRANSIT SYSTEM SUED - Add Atlanta Georgia’s public transit system MARTA ( Metropolitan Atlanta Rapid Transit Authority) to the growing list of systems being sued under the ADA for accessibility problems. Last November, six plaintiffs, including a Fulton County magistrate with quadriplegia, represented by attorneys for the nonprofit Disability Law and Policy Center, filed suit alleging consistent, blatant discrimination against MARTA riders with disabilities. “ Like many Atlantans, I use MARTA as my primary means of transportation, said Judge Stephanie Davis, who uses a wheelchair as the result of a spinal cord injury she sustained in 1980. “ It is not unusual for me to encounter buses with wheelchair lifts that don’t work, or drivers who don’t know how to operate the equipment, and to experience unacceptable delays in service. But when a paratransit van driver recently refused to help me deposit my fare because he wasn’t supposed to handle money, I was shocked.” “ In a three month period of time, riders have logged an unacceptable number of violations,” explained Joshua H. Norris, spokesperson for the DLPC. “ Visually- impaired riders constantly encounter drivers who do not announce stops, and people who use wheelchairs are frequently denied service because buses have broken equipment. Riders who rely on MARTA’s paratransit service have received the worst treatment, which is made all the more unfortunate by the fact that the paratransit van is for many the only option for transportation.” The ADA requires all public transportation systems to provide paratransit services, which are dedicated buses that provide transportation to individuals with disabilities who cannot use the regular, fixed route service.
LATEX ALLERGY NOT A DISABILITY SAYS PHILADELPHIA JURY - A federal jury in Philadelphia decided a case in December that could be very important to the health care industry. The jury found that a nurse’s allergy to latex was not a disability because she could avoid the problem simply by not wearing latex products and taking medications. Lawyers for the defense argued that she could easily return to work as a nurse in a non- latex environment and thus, under Sutton v. United Air Lines, she did not have a disability. Scanlon v. Temple University.
TICKET TO WORK OFF AND RUNNING - The Social Security Administration launched its “ Ticket to Work” program February 5th to help millions of people with disabilities find jobs. ( See ADA News No. 92, 10/ 15/ 01, ADA News No. 96 - 15- February 16, 2002
http:// intradep/ ChiefCounsel/ ADANews/ adanews_ 92/ ada_ news_ 92_ frontpage. htm.) “ Ticket to Work” vouchers can be used by eligible people to pay for job training, employment counseling and vocational rehabilitation. The goal of the program is to get more people off the Social Security, Medicaid and Medicare rolls and bring more people with talent and skills into the work force, says Social Security Commissioner Jo Anne Barnhart. “ It’s the best opportunity I’ve had in a long time to do something,” said Ormaine Hawthorne, who has used a wheelchair since a car accident in May 2000, and who said he wants to use his voucher to get job training. Vouchers will be mailed to Social Security beneficiaries by January 2004. Participation in the program is voluntary. “ Millions of Americans with disabilities will have new opportunities for career counseling, training and job placement,” said former Sen. Bill Roth, R- Del., who helped write the Ticket to Work legislation as chairman of the Senate Finance Committee. For more information on the program, go to http:// www. ssa. gov/ work/ Ticket/ ticket_ info. html.
RAMPS AREN’T ALL THAT IS NEEDED TO MAKE STORE ACCESSIBLE - Okay, so your a store owner who has made all of the alterations necessary to make your store accessible to persons with disability, and to bring your premises into compliance with the Act. Now you can relax, right? Not necessarily, as the manager of the Dexter Shoe Factory Outlet in Chichester, New Hampshire found out earlier this month. A couple, one of whom uses a wheelchair, found the store’s ramp covered with snow and ice following a snowstorm, and blocked with hand- lettered signs reading, “ RAMP CLOSED FOR WINTER.” The store manager, pleading that it was “ too cold” to clear the ramp of snow and ice, offered to have an employee go into the parking lot to assist anyone who required assistance entering the store, by carrying the person if necessary. According to the Act, stores are required to take “ readily achievable” steps to make their buildings accessible. Clearing ice and snow from the ramp would be readily achievable, according to Maureen Stimpson, an accessibility specialist with the New Hampshire Governor’s Commission on Disability. “ The whole idea behind the law is that people with disabilities should be able to access doors, businesses, schools and courthouses without assistance,” said Michael Jenkins, director of the Governor’s Commission. “ It’s an issue of dignity.” Physically carrying a person with a disability is not a permitted accommodation in almost all instances.
AREA CALENDAR -
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19th Annual Employment Law and Legislation Conference; March 11- 13, 2002; Washington, DC; Society for Human Resource Management ( SHRM); conference will include sessions on ADA and reasonable accommodation; for information, contact SHRM at 703- 548- 3488, via e- mail at shrm@ shrm. org, or on the web at http:// www. shrm. org
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Disability Convocation directed to seminary communities; March 15, 2002; Wesley Theological Seminary, Kresge Academic Center, 4500 Massachusetts Ave. NW, Washington, D. C.; coordinated by the National Organization on Disability; the first regional disability conference focusing on seminaries, the Convocation is directed to the 12 mid- ADA News No. 96 - 16- February 16, 2002
Atlantic seminaries within the Washington Theological Consortium; for information, contact Ginny Thornburgh or Lorraine Thal, 202- 293- 5960, or at religion@ nod. org
􀂉 “ Multiple Perspectives on Access, Inclusion, & Disability: Disability in Context;” April 11 - 12, 2002; The Ohio State University’s Fawcett Center, Columbus Ohio; sponsored by The Ohio State University, ADA- OHIO & Great Lakes ADA & IT Center; check the OSU webpage for registration updates at http:// ada. osu. edu
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“ Improving the Quality of Education for Students with Disabilities: A Shared Responsibility;” April 25, 2002, 2- 4 PM; a national teleconference sponsored by The Ohio State University Partnership Grant and affiliates; an effort to share cost- effective and meaningful strategies for improving collaboration among administrators, faculty, staff, and students on diversity and disability issues in higher education; for more information or to register for this special event, visit The Ohio State University Partnership Grant web site at www. osu. edu/ grants/ dpg/ teleconference
EEOC COUNSEL TO BE NAMED - President Bush has announced his intension to name Donald Prophete as general counsel for the EEOC. Prophete is currently an employment attorney for the Sprint Corporation, and was formerly with the law firm of Klett Lieber Rooney and Schoring in Pittsburgh. He is a native of Haiti, and a graduate of Fordham University and Boston University School of Law. The EEOC’s office of general counsel obtained $ 47.3 million in monetary benefits for claimants during the last fiscal year. The President has also nominated Leslie Silverman and Naomi Churchill Earp to the two open Republican seats on the Commission. Http:// www. eeoc. gov.
EMPLOYER ENTITLED TO RELY ON DOT RULE - An employer was entitled to rely on U. S. Department of Transportation ( DOT) advisory criteria in deciding that a driver taking antiseizure medication was unqualified to operate a commercial motor vehicle hauling propane and other fuel products said the U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, NM, KS, OK). Although the driver provided a medical certification to drive commercial vehicles, the Court held that the employer could rely on the DOT criteria, which advise against employing seizure- prone drivers given the risks involved if they fail to take their medication. Although the DOT criteria are merely advisory and nonbinding, the court was hesitant to challenge the legitimate business judgment of the DOT and its covered employers. Tate v. Farmland Indus., Inc., CA10, No. 99- 6329, 10/ 10/ 01 ( http:// www. kscourts. org/ ca10/ cases/ 2001/ 10/ 99- 6329. htm).
NEW BUILDING CODES TO RECOGNIZE ACCESSIBILITY NEEDS - Naperville, Illinois and Pima County, Arizona - what could these two possibly have in common? They are the believed to be the first localities in the country to adopt building code changes that will make new homes more accessible to persons with disabilities. The code amendments require that new homes have wider interior doors, lower light switches, higher electrical sockets, reinforced bathroom walls to allow ( but not require) handrails and, in the case of Pima County, the additional requirement of a zero- step entrance that can be traversed by wheelchairs. ( This change is also being considered by the Naperville city council.) “ This is like walls being removed, or layers being peeled away,” said Norene Jenkins of Naperville, who uses a motorized scooter because of a virus that causes paralysis. “ We’re going to be able to go to the bathroom,” exulted Bill Malleris, a wheelchair user and developer. Several cities, including Chicago, Atlanta, Austin, Texas and Urbana, Illinois have passed similar laws pertaining to housing built with public funds.
ADA CLAIMANTS HAVE LOW SUCCESS RATE - A recent study indicates that fewer than 17 percent of appeals court decisions under the ADA result in judgments favorable to claimants. The study shows that results differ significantly among circuits, with the U. S. Court of Appeals for the Fourth Circuit ( WV, VA, MD, NC, SC) being the most hostile to ADA claimants, and the District of Columbia, Second, and our own U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) being the most friendly.
FROM THE MICROSOFT ACCESSIBILITY UPDATE - You can now hear what you type in Excel 2002 spreadsheet cells. Hearing what is typed can assist students with data entry and help them check their work for errors. The text- to- speech options let you control what voice is used ( male or female) as well as the speed of the reading. This feature is not only a great way for students who are learning English to hear the text, but also a great auditory reinforcement for children. Http:// www. microsoft. com/ education/? ID= speechfeature.
FLORIDA COMMUNITY WINS NOD ACCESSIBILITY AWARD - Venice, Florida has been chosen by the National Organization on DisAbility for its first annual Accessible America award. The city received an award of $ 25,000, which will be used to further the inclusion of people with disabilities in community life. The contest was open to all U. S. cities and towns. Venice’s application detailed community efforts to welcome, include, and be accessible to people with disabilities, and surpassed sixty- four other entries from around the nation. Http:// www. nod. org/ cont/ dsp_ cont_ item_ view. cfm? viewType= itemView& contentId= 778& fromLocHmePg= T& fromLocationId= 19& timeStamp= 14- Feb- 0208: 09: 40.
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" News Reviews to Peruse"
Number 97 March 2002
Items regarding disabilities law and 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 recent issues can be found online at http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ adanews_ index_ 2001. htm. All past issues of this publication are archived at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP internal website.
HIGH COURT WILL NOT RULE ON DRIVING CASE - The U. S. Supreme Court has declined to review a decision of the U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL), in which the Circuit Court found that a nurse’s temporary inability to drive an automobile due to epilepsy was not a substantial limitation on a major life activity. See Chenoweth v. Hillsborough County, ADA News No. 88, 6/ 15/ 01 ( http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ada_ news_ 88_ frontpage. htm).
ADA News No. 97 - 19- March 15, 2002
ECHAZABAL CASE ARGUED - The Supreme Court heard argument on February 27, 2002 in Chevron U. S. A. Inc. v. Mario Echazabal, No. 00- 1406 ( appeal from decision of the U. S. Court of Appeals for the Ninth Circuit). This case, involving the applicability of the “ direct threat” exception to cases solely involving threat to the safety of the individual with a disability and not others, was reported in ADA News No. 94, 12/ 15/ 01 ( http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ada_ news_ 94_ frontpage. htm). The amicus curiae brief of the National Council on Disability can be found online at http:// www. ncd. gov/ newsroom/ publications/ chevron_ amicus. html. “ This case is so important because the outcome will say a lot about what the ADA really means,” said employee counsel Gary Phelan of Klebanoff & Phelan, who filed an amicus brief for the National Employment Lawyers Association supporting Echazabal. A decision is expected this spring.
CIRCUIT CITY AGREEMENT VOID - An arbitration agreement that was at the heart of a recent decision of the U. S. Supreme Court has been found to be unenforceable. Last spring, the Court issued a decision in Circuit City v. Adams, 532 U. S. 105 ( 2001), finding that a compulsory arbitration agreement between employee and employer could bar a discrimination lawsuit by an employee against the employer. ( See Employers Welcome Supreme Court Arbitration Decision, ADA News No. 90, 8/ 15/ 01, http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ada_ news_ 90_ frontpage. htm). The decision reversed that of the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) that had found that employment arbitration agreements were unenforceable under the Federal Arbitration Act, and remanded the matter to the Circuit Court. This February, the Circuit Court issued a new ruling finding that the arbitration agreement was too one- sided to be enforceable under California law. “ Objectionable provisions pervade the entire contract,” wrote Judge D. W. Nelson for the Court. “[ W] e find the entire arbitration agreement unenforceable.” Circuit City Stores, Inc. v. Adams, CA9, No. 98- 15992, 2/ 4/ 02 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ 1CAEBFEEDEB3E38288256B56005E9EE6/$ file/ 9815992. pdf? openelement).
DISABILITIES WEBSITE OF THE MONTH - Few areas have offered more opportunities for technological advances than the field of disabilities accommodations. Cognizant of the substantial spending power of 40 million plus Americans with disabilities, companies - especially computer companies - have pushed the development envelope. For one example of some exciting new developments in reader technology, take a look at NextUP. com, a company that specializes in reader software for people with low or no vision. From radio to weather to stocks, there is ADA News No. 97 - 20- March 15, 2002
a product from NextUp to bring the written word alive. Find it on the web at http:// www. NextUpTech. com.
AWAITING THE AX AT EEOC - The Bush administration’s 2003 fiscal budget contained a reduction in allotted funds for the Equal Employment Opportunity Commission. The agency, whose FY 2002 funding was $ 326 million, was reduced to $ 323.5 million, about $ 30 million of which is intended for state and local work- share agencies. A reorganization of the agency and staff cuts are expected. In the President’s just- released budget, domestic “ discretionary” spending will rise 7% overall, but a substantial part is accounted for by an increase for an anti- terrorism programs, leaving a roughly 1% growth for other domestic discretionary programs. Many programs of importance to the disabilities movement were level funded.
PATIENTS’ BILL OF RIGHTS TRUDGES ON - A spokesperson for Senator Tom Daschle has indicated that he expects that the Majority Leader to appoint the members of the conference committee for the Patients’ Bill of Rights to work out differences between the House and Senate- passed versions. The House version of Patients’ Bill of Rights legislation included an amendment encouraging the formation of association- sponsored health plans, while the Senate- passed version did not include such a provision. Senator Edward Kennedy ( D- MA) is negotiating with the President on a possible compromise on patients’ rights. Http:// www. senate. gov/~ dpc/ patients_ rights.
N. O. D. ISSUES “ STATE OF THE UNION” RESPONSE - On January 29, 2002, President Bush delivered the State of the Union address, in which he addressed the challenges of this country as it entered a new year. A few days after the President’s address, the National Organization on Disability issued its own “ State of the Union 2002,” in which it addressed what it saw as the problems facing Americans, with and without disabilities. “ A clear majority of people with disabilities, 63 percent, say that life has improved for the disability community in the past decade,” the address declares. “ But when asked about life satisfaction, only 33 percent say they are very satisfied with their life in general — half as many as among those without disabilities. There is much room for improvement.” Read the complete document at http:// www. nod. org/ cont/ dsp_ cont_ item_ view. cfm? viewType= itemView& contentId= 751& fromLocHmePg= T& fromLocationId= 2& timeStamp= 25- Jan- 0202: 17: 24.
ADA News No. 97 - 21- March 15, 2002
AREA CALENDAR -
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“ Brain Awareness Week;” March 11- 17, 2002; various locations; for information, visit http:// www. ucp. org/ ucp_ generaldoc. cfm/ 134/ 2/ 125/ 125- 125/ 3183
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Statewide public forums; April 1- 12, 2002; various Pennsylvania locations; sponsored by the state Office of Vocational Rehabilitation; forums allow any Pennsylvanian to present his or her views and recommendations on the Combined Agency State Plan, and on how the state’s vocational rehabilitation program can better serve the needs of people with disabilities; for specific dates and locations, browse to http:// www. dli. state. pa. us/ landi/ lib/ landi/ pdf/ ovr/ overview2- 22- 02. pdf
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Telecommunications Relay Service Forum; Friday, May 3, 2002, from 9: 30 a. m. - 3: 30 p. m.; Federal Communications Commission, 445 12th Street, S. W., Washington, DC; forum and Expo for TRS administrators, consumers, providers, and Commission staff to share information on current state of TRS and TRS technologies; information at http:// www. ucp. org/ ucp_ generaldoc. cfm/ 134/ 8/ 11211/ 11211- 11211/ 3184
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“ National Council on Independent Living: Celebrating 20 Years;” June 12 - 15, 2002; Washington, DC; NCIL’s 20th annual conference, featuring speakers, workshops, and activities; for information, contact 800- 883- 2420 ( v or TTY) or 202- 833- 4456 ( voice or TTY), or e- mail ncilconference@ ncil. org
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“ Reframing Disability: AHEAD 2002;” July 8- 12, 2002; Hyatt Regency Crystal City, Arlington, VA; 25th annual conference and exhibit of the Association on Higher Education and Disability; for more information, visit http:// www. ahead. org, or call 617- 287- 3880 ( v), or 617- 287- 3882 ( TTY)
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Cultural Arts Accessibility Conference; August 8- 11, 2002; The Kennedy Center, Washington, DC; conference for ADA/ 504 coordinators and accessibility managers in the cultural arts, including discussions on interpreting, captioning and audio description, technology resources, and community advocacy; for additional information, contact the Kennedy Center Manager of Accessibility, Betty Siegel, at ( 202) 416- 8727 ( v) or ( 202) 416- 8728 ( TTY), or e- mail at access@ kennedy- center. org.
UCP OF PITTSBURGH ISO “ COMMUNITY HEROES” - UCP of Pittsburgh is accepting nominations for its “ Community Hero Awards” dinner to be held September 25, 2002 at the Pittsburgh Hilton and Towers. Each year UCP of Pittsburgh honors “ Community Heroes,” both individuals and associations, who have enhanced the quality of life for people in our community. The awards have increased awareness of issues confronting people with disabilities, and brought ADA News No. 97 - 22- March 15, 2002
about meaningful change in the community. Nominations for awards can be made online at http:// www. ucp. org/ ucp_ localdoc. cfm/ 136/ 9492/ 9500/ 9500- 9500/ 1704.
DOJ GUIDANCE ON SERVICE ANIMALS - The Department of Justice amended its guidance last year for businesses that serve the public regarding service animals. The change permits business owners to inquire of a person who seeks to enter the facility with a service animal, “ if an animal is a service animal or ask what tasks the animal has been trained to perform, but cannot require special ID cards for the animal or ask about the person’s disability.” The DOJ guidance document can be found online at http:// www. usdoj. gov/ crt/ ada/ svcanimb. htm.
KEYBOARD ASSISTANCE FOR USERS WITH LIMITED MOBILITY - A new product has been introduced that is designed to make computer input easier for folks who, because of limited hand mobility, have difficulty using traditional keyboards. Called “ OrbiTouch,” the keyboard is produced by Keybowl, Inc., a manufacturer of other ergonomic products. The OrbiTouch Keyless Keyboard is a 128-“ key” keyboard made of two domes. It use two independent inputs in which the two domes are used concurrently to type. While both hands are required to type, no finger or wrist motion is required. Read John Williams’ review of this product on the N. O. D. website at http:// www. nod. org/ cont/ dsp_ cont_ item_ view. cfm? viewType= item View& contentId= 753& locationId= 4& contentTypeId= 17& fromLocHmePg= F& LineNbr= 1& StartRow= 1& timeStamp= 14- Mar- 0206: 47: 08.
SHAREHOLDERS ARE EMPLOYEES FOR ADA PURPOSES - The U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) decided late last year that, for purposes of the Act, shareholders of a professional corporation are employees. An “ employee” is defined as “ an individual employed by an employer” in the ADA. In a case of first impression, the Court found that a medical corporation could not “ have it both ways” in trying to limit its liability and still procure the tax benefits of incorporation. Citing Hyland v. New Haven Radiology Associates, P. C., 794 F. 2d 793 ( 2nd Cir. 1986), the Court found “[ i] n Hyland, the court held that the use of the corporate form, including a professional corporation, ‘ precludes any examination designed to determine whether the entity is in fact a partnership.’ The incorporators of a professional corporation make a deliberate decision to adopt the corporate form for their business in order to avail themselves of important tax, employee benefit, and civil liability advantages. Having freely made the choice to adopt this form of business organization ‘ they should not now be heard’ to say that their firm is ‘ essentially a medical partnership,’ and not a corporation.” Wells v. Clackamas Gastroenterology Associates, P. C., CA9, No. 00- 35545, 11/ 26/ 01 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ E9B2567FD81D455588256B0E00043F7C/$ file/ 0035545. pdf? openelement).
MARTIN HOSPITALIZED - Casey Martin, the 29- year- old professional golfer who challenged the Professional Golfers’ Association all the way to the U. S. Supreme Court and won, was hospitalized in January for a life- threatening infection in his withered right leg. Martin was operated on January 15th to remove “ golf ball- size bacteria” that had triggered “ a potentially life- threatening infection.” The infection arose following surgery to ease the pain he experiences in his leg. Martin was expected to be in the hospital for up to two weeks and then require another six to 10 weeks rehabilitation at home. Martin has Klippel- Trenaunay- Webber Syndrome, a degenerative circulatory disorder in his right leg that makes it agonizing for him to walk more than a short distance.
ANNOTATIONS - Not Exactly What We Intended, Justice O’Connor, by Representative Steny H. Hoyer ( D- Md.) - As we know, courts interpret law as they see it. Even when determining a legislature’s intent, a court decides for itself what the legislators intended. Here is a thoughtful and fascinating view into the process of passing laws and interpreting them, by someone who was present at the birth of the ADA. Originally published in the Washington Post.
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Not Exactly What We Intended, Justice O’Connor, by Representative Steny H. Hoyer ( D- Md.), Sunday, January 20, 2002
Earlier this month, Supreme Court Justice Sandra Day O’Connor said she understood the intent of Congress -- what my fellow lawmakers and I meant -- when we wrote and then enacted the Americans with Disabilities Act in 1990.
She never asked for my view; the court doesn’t work that way. Still, in four places in her opinion, Justice O’Connor cited a phrase or context to invoke what “ Congress intended.” Then she and her fellow justices unanimously narrowed the scope of the act and ordered a lower court to reconsider a decision that allowed a woman suffering from carpal tunnel syndrome to be excused from certain tasks at a Toyota Motor plant in Kentucky. Casting doubt on the woman’s right to protection under the legislation, O’Connor wrote that a disability must substantially limit major activities “ that are of central importance to most people’s daily lives.”
It is difficult to say, based solely on the letter of the law as we wrote it, that O’Connor is wrong. But as the congressman who shepherded the legislation through the House of Representatives, I believe that the “ intent of Congress” was clearly more expansive than Justice O’Connor’s ruling would suggest.
It is not unusual for the Supreme Court to invoke “ the intent of Congress” in interpreting the Constitution or pieces of legislation. It helps make our Constitution and laws living documents instead of dead letters. But divining the intent of Congress, even a decade ago, can be tricky business, especially given the compromises and disparate motives that go into the making of legislation.
ADA News No. 97 - 23- March 15, 2002
ADA News No. 97 - 24- March 15, 2002
In this case, I know a lot about the intent of Congress and how the Americans with Disabilities Act came into being. The story sheds light on what we meant by disability and on the perils of judicial attempts at retroactive mind reading.
The original sponsor of the ADA in the House was Tony Coelho, then a California Democrat and majority whip. Coelho had a personal interest in the bill. After a head injury suffered as a child, Coelho developed epilepsy. This would not fit the court’s definition of something that prevented Coelho from performing major life activities. Unless someone told you about his epilepsy, you would never know he had it. Yet because of misconceptions about the effects of epilepsy, he had been expelled from a seminary, had his driver’s license revoked, been discriminated against by health insurers, and rejected by the armed services.
When Coelho resigned from Congress in 1989, he asked that I take over stewardship of the bill. My wife also had epilepsy, though it was under control. So I knew of the prejudice such illnesses can evoke. And it contributed to my belief that a range of illnesses should be covered by the ADA and should not disqualify a person from employment or cause discrimination.
This highlights a crucial issue in the ADA debate: perceptions are important to overcome, too. Many medical conditions, like mental illness, if treated properly, are not debilitating. In our minds, it was important to protect not only people who had genuine trouble functioning normally, but people whose employers might wrongly perceive as being substantially impaired.
When writing the legislation, we borrowed the definition of handicapped from the Rehabilitation Act of 1973, which applied to federal grant recipients. We did this because the courts had generously interpreted this definition. Moreover, we thought using established language would help us avoid a potentially divisive political debate over the definition of disabled. The ADA was designed to extend protection to people working in the private sector and seeking access to public accommodations, transit systems and communications networks. So we simply adopted the definition of disability from language in the 1973 act.
Justice O’Connor cited that language in her opinion earlier this month. That’s where she found reference to an illness “ that substantially limits one or more of the major life activities of [ an] individual.” Ella Williams, the woman at the Toyota plant who had carpal tunnel, might not be able to prove her condition blocks her from one of life’s major activities, such as walking, seeing or hearing. O’Connor said that “ household chores, bathing and brushing one’s teeth” were also the types of tasks the court of appeals should have considered in deciding whether Williams was “ substantially
limited” in performing manual tasks.
ADA News No. 97 - 25- March 15, 2002
Is this what we had in mind when we passed the ADA -- that lawyers for businesses and individuals should spend time and money arguing about whether people can brush their teeth and take out the garbage? Not at all.
The whole tenor of the debate at that time was far broader. For example, we defeated an amendment introduced by Rep. Jim Chapman ( D- Tex.) to protect restaurant owners who refused to hire people with HIV/ AIDS. The restaurant owners wanted the law to specifically exclude HIV/ AIDS from the definition of disability. No disability, no protection. The restaurant owners’ association argued that if, medical evidence to the contrary, the public perceived that people could transmit AIDS by handling food, people would avoid restaurants that employed such people.
But the majority in Congress wanted AIDS sufferers, and others perceived as disabled, to be covered by the ADA, so in the end the law did not mention the issue.
There could of course be 535 different answers about the intent of Congress when it passed the ADA. It passed both houses by wide margins: 403 to 20 in the House and 76 to 8 in the Senate. Several committees and subcommittees in the House -- including the telecommunications, education and labor, judiciary, and transportation committees -- weighed different sections. I led the battle on the House floor. On the Senate side, the legislation was co- sponsored by Tom Harkin ( D- Iowa), Robert Dole R- Kan.) and 32 other senators. If anything, Harkin had a more expansive definition of disability than I did. His deaf brother was sent to the Iowa School for the Deaf and Dumb, where students were taught one of only three trades: baker, printer or cobbler. And Dole, who suffered a debilitating injury to his right arm in World War II, was also a strong and leading advocate of the ADA.
When we wrote the ADA, we estimated that 43 million people would be covered. That seemed like a lot and we thought that showed we intended the law to be broad rather than narrow. Until the ADA passed, the average guy thought of a disability as something that meant you couldn’t walk or see or hear. Our broader estimate helped build support for the legislation.
Now, however, O’Connor has cited that figure to say that carpal tunnel and other conditions might push the national total of people protected under the ADA far beyond 43 million and that Congress did not intend that. “ If Congress intended everyone with a physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task to qualify as disabled, the number of disabled Americans would surely have been much higher,” she wrote. But the number we used wasn’t designed to limit the effect of our legislation, but to show its breadth.
When President George H. W. Bush signed the Americans With Disabilities Act in July 1990, partisans on both sides of the aisle rejoiced that we had made our nation a better place for everyone. Bush said, “ with today’s signing of the landmark ADA, every man woman and child with a disability can now pass through once- closed doors into a bright new era of equality, independence and freedom.”
Has our vision come to fruition? Yes and no.
The ADA has clearly helped people with some disabilities. It has transformed how architects design buildings, how conference organizers plan events, and how states provide services to people with mental illness and retardation.
But defense lawyers in recent years have concocted novel arguments to exclude impairments that do not sufficiently limit a major enough activity. People with diabetes, heart conditions, cancer and mental illnesses have had their ADA claims kicked out of court because, with improvements in medication, they are “ too functional” to be considered “ disabled.” One trial judge ruled that a salesman who tried to return to work after recovering from a heart attack was not " disabled," and therefore not entitled to protection when his employer fired him because it feared he would not be as productive as before.
Recent studies show that plaintiffs lose 90 percent of ADA claims, mostly on the grounds that they are not disabled enough. Ironically, that includes a majority of claims brought by Coelho’s fellow epileptics. The ADA has become a “ Lawyers’ Employment Act,” instead of the “ People’s Empowerment Act” we intended it to be.
So perhaps the most striking thing about the Supreme Court’s decision this month in Toyota Motor Manufacturing v. Williams is how we and the advocates for the disabled failed to anticipate what this court’s views of our views would be.
Our responsibility now is to revisit both our words and our intent in passing the ADA. In matters of statutory interpretation, unlike constitutional matters, Congress has the last word. We can decide whether the employment policy effectively put into place by the Supreme Court’s interpretations of the ADA is a solid one. Or we can decide to rewrite the statute. In either case, Congress must look at this landmark civil rights law and determine whether it is carrying out the promise and potential we all celebrated in 1990.
Rep. Steny Hoyer, a Democrat, represents Maryland’s 5th Congressional District in the U. S. House of Representatives.
ADA News No. 97 - 26- March 15, 2002
ADA News No. 98 - 27- April 15, 2002
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" News Reviews to Peruse"
Number 98 April 2002
Items regarding disabilities law and 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 recent issues can be found online at http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ adanews_ index_ 2001. htm. All past issues of this publication are archived at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP internal website.
SUPREME COURT RULES ON ‘ ONE STRIKE’ RULE - In ADA News No. 94, 12/ 15/ 01 ( http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ada_ news_ 94_ frontpage. htm), I reported on a case scheduled for review by the U. S. Supreme Court involving a Housing and Urban Development ( HUD) rule that required the eviction of a resident of public housing if it is discovered that drug- related criminal activity is taking place in or near the public housing unit and the tenant, a members of the tenant’s household or a guest is engaging in the activity. One of the plaintiffs ADA News No. 98 - 28- April 15, 2002
in the case from the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) was a 75- year- old man with a disability whose caregiver was found to have used drugs in the man’s apartment. On March 26th, the Court handed down a unanimous decision affirming the federal rule. The High Court found that the rule allowed no exceptions, reversing the decision of the Ninth Circuit, that had found the rule to apply only when the drug offender was “ under the tenant’s control.” The HUD rule, “ requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug- related activity, regardless of whether the tenant knew, or should have known, of the drug- related activity,” wrote Chief Justice Rehnquist for the Court. Department of Housing and Urban Development v. Rucker, USSCt, Nos. 00- 1770 & 1781, 3/ 26/ 02 ( http:// supct. law. cornell. edu/ supct/ html/ 00- 1770. ZO. html).
O’CONNOR CRITICIZES DISABILITIES LAW AS TOO VAGUE - “ Supreme Court Justice Sandra Day O’Connor sounded off on the country’s leading law protecting the rights of the disabled yesterday [ March 14th], telling a conference of business lawyers that the high court has been obliged to wrestle with a heavy load of disability rights cases because the 1990 act was drafted too hastily by Congress.” Read about this important glimpse into the thoughts of a Supreme Court Justice who has been the swing vote in a number of ADA cases at the Washington Post website, http:// www. washingtonpost. com/ ac2/ wp- dyn? pagename= article& node=& contentId= A29110- 2002Mar14& notFound= true.
GENETIC DISCRIMINATION - The Bush administration has announced that it supports legislation designed to ban discrimination on the basis of the results of a person’s genetic testing, but opposes a measure allowing potential plaintiffs to bypass the EEOC and proceed directly to federal court with their claims. Senator Tom Daschle ( D- S. D.) has proposed legislation ( S. 318) that does bypass the EEOC, and contains no caps on damages. ( To see Senator Daschle’s bill, go to http:// thomas. loc. gov, and enter “ S318" ( without the quotes) in the bill number window.) Compromise bills are being worked on by Senators Snow ( R- Maine), Jeffords ( I- Vt.) and Enzi ( R- Wyo.). The ban on so- called “ genetic discrimination” enjoys general support by both parties.
DISABILITIES WEBSITE OF THE MONTH - Thanks to reader Marc Roda for bringing Audible. com to my attention. Audible. com provides audio copies of books and other audio programs in . MP3 format - a service that can be of use to person with low or no vision, but also to folks who like to “ hear” the latest best seller instead of reading it on the printed ADA News No. 98 - 29- April 15, 2002
page. Audible. com maintains a library of recorded works that for a reasonable price can be downloaded directly to one’s personal or laptop computer, where one can listen or download further onto any of a number of portable . MP3 players. Works are available in a number of categories, including best sellers, business, kids, history, spirituality, etc. A Basic Membership costs less than $ 15.00 and entitles a member to download one audio book per month. More books are available under the premium plan. Currently, the site is offering a free Otis portable . MP3 player to new members. Check it out at http:// www. audible. com.
REAPPLICATION REQUIREMENT NOT BASED ON DISCRIMINATORY REGARD - A Pennsylvania nurse was required to reapply for her job after being absent from work on disability leave for six months. The nurse had three surgeries during her absence for carpal tunnel syndrome, notifying her employer each time. When she was cleared by her physician to return to work, she was told by her employer that she must re- apply for her position. The nurse refused to re- apply or return to work, instead suing under the ADA alleging discrimination based on a perception that she had a disability. U. S. District Judge Bruce W. Kauffman dismissed her claim. Citing Kelly v. Drexel University, 94 F. 3d 102 ( 3rd Cir. 1996), Judge Kaufman found that merely proving that an employer was aware of a medical problem was insufficient to show discriminatory regard. “ Because plaintiff has produced no evidence other than defendant’s knowledge of her disability leave, she has failed to establish that defendant regarded her as having a disability,” wrote Judge Kauffman. Kaufman added in two footnotes that, even had the nurse succeeded in proving that her employer regarded her as a person with a disability, she would be unlikely to be able to prove that she was regarded as being able to perform a broad class of jobs, or that she had suffered an adverse employment action. Poyner v. Good Shepherd Rehab, USDC EPa. No. CA- 01- CV- 829, 2/ 15/ 02.
DOES THE ADA APPLY TO PAROLE DECISIONS? - It does according to the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU). That Court decided last month that the Act applies to California parole decisions, in a case where the California parole board allegedly considered the past drug addiction of two prisoners in denying their parole applications. “ Since a parole board may not deny African- Americans consideration for parole because of their race, and since Congress thinks that discriminating against a disabled person is like discriminating against an African- American, the parole board may not deny a disabled person parole because of his disability,” the opinion reads. A federal trial judge will now consider whether the Board ADA News No. 98 - 30- April 15, 2002
discriminated against the prisoners. The opinion suggests that the ADA may also apply to an even wider variety of criminal justice decisions. Thompson v. Davis, CA9, 02 C. D. O. S. 2207, 3/ 8/ 02.
CHARGES INCREASE AT EEOC - Job discrimination complaints filed against private employers with the Equal Employment Opportunity Commission increased last year to the highest level in six years as the country’s economy moved into recession. “ It’s not unusual to see an increase in complaints against employers when the economy has gone south and employees are being laid off,” said Randy Johnson, the U. S. Chamber of Commerce’s labor policy vice president.
NATIONWIDE WORKSHOPS LAUNCHED UNDER NEW FREEDOM INITIATIVE - ( April 1, 2002) “ As part of President George W. Bush’s New Freedom Initiative, U. S. Equal Employment Opportunity Commission ( EEOC) Chair Cari M. Dominguez today announced a series of workshops designed to share information on the employment of individuals with disabilities with small businesses nationwide. This free, flexible outreach program will target the participation of small business chambers of commerce, associations and development centers outside of major metropolitan areas.” Read the rest of the EEOC press release at the Commission’s website, http:// www. eeoc. gov/ press/ 4- 1- 02. html.
SON PUNISHED FOR THE “ SINS” OF FATHER - Credit Chief Judge Becker of the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) for that one, in his delightfully written opinion in Fogleman v. Mercy Hospital, Inc. ( Hey, it’s not everyday you see Euripides quoted in a judicial opinion.) The appeal examined a case in which the son, a security guard fired purportedly for job- related reasons, alleged that he was fired, in fact, in retaliation for an ADA lawsuit his father, formerly an employee, had filed against the hospital. The suit, brought under the anti- retaliation provisions of the ADA, the Age Discrimination in Employment Act ( ADEA), and the Pennsylvania Human Relations Act ( PHRA), raised the question, “ whether the anti- retaliation provisions of the ADA, ADEA, and PHRA prohibit an employer from taking adverse employment action against a third party in retaliation for another’s protected activity.” The Court found the answer to this question to be generally yes with respect to the three laws. “[ W] e believe … the plain text of these statutes clearly prohibits only retaliation against the actual person who engaged in protected activity,” stated the Court. Unfortunately for the hospital, however, the Court looked to the “ additional” anti- retaliation provision of the ADA, that “ makes it unlawful for an employer ‘ to coerce, intimidate, threaten, or interfere with any individual’ ADA News No. 98 - 31- April 15, 2002
exercising rights protected under the Act. 42 U. S. C. S 12203( b).” The Court reversed the decision of the lower court to grant summary judgment because, as it saw it, the son’s “ claim that he was retaliated against for his father’s protected activity is valid as a matter of law.” Fogleman v. Mercy Hospital, Inc., CA3, No. 00- 2263, 3/ 18/ 02 ( http:// www. ca3. uscourts. gov/ opinions/ 002263. txt).
SECOND CIRCUIT WRONG IN INCREASING PLEADING STANDARD - The U. S. Supreme Court held unanimously on February 26th that plaintiffs in employment discrimination cases need not plead facts in their complaints to make out a prima facie case, but are required only to make a “ short and plain” statement of their claim. The Court’s decision followed review of a decision of the U. S. Court of Appeals for the Second Circuit ( NY, VT, CT) that had required a plaintiff to plead facts that satisfy the first prong of the McDonnell Douglas burden shifting test for proving discrimination. “ The prima facie case under McDonnell Douglas … is an evidentiary standard, not a pleading requirement,” wrote Justice Clarence Thomas for the Court. “ Under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case.” Swierkiewicz v. Sorema N. A., USSCt. No. 00- 1853, 2/ 26/ 02 ( http:// a257. g. akamaitech. net/ 7/ 257/ 2422/ 26feb20021130/ www. supremecourtus. gov/ opinions/ 01pdf/ 00- 1853. pdf).
DISMISSAL INAPPROPRIATE IN CASE OF AMPUTEE EMT - Summary judgment was improvidently granted by a trial court in a case involving a “ genetic amputee” who applied for a job as an EMT with an ambulance company, according to a recent decision of the U. S. Court of Appeals for the First Circuit ( ME, PR, NH, MA, RI). In an enlightening opinion written by Circuit Judge Selya, the Court examined a case involving a woman born with a deformed left arm who, aspiring to be a doctor, decided as an interim step to be an Emergency Medical Technician. She encountered difficulty, however, when the ambulance company to which she applied turned her down for the job because, in the opinion of the company’s medical examiner, she could not perform one essential function of the job - “ 2 handed lift independent or with partner.” The EMT sued, but the trial court dismissed her claim, finding that she was not substantially limited in the major life activity of “ lifting,” and because she was “ not qualified for the position when she applied … because she was unable to lift sufficient weight to enable her to perform essential job functions.” In a very well- reasoned opinion, Judge Selya found that the lower court erred, “[ b] ecause genuine issues of material fact persist on at least three salient questions - whether the appellant’s impairment was disabling, whether she was qualified for ADA News No. 98 - 32- April 15, 2002
the position at the time that she applied, and whether [ the employer] discriminated against her on the basis of an illegal stereotype.” This opinion is worth reading. Gillen v. Fallon Ambulance Service, Inc. CA1, No. 01- 1642, 03/ 19/ 02 ( http:// www. ca1. uscourts. gov/ cgi- bin/ getopn. pl? OPINION= 01- 1642.01A).
FEDERAL JUDGE FINDS STATES NOT IMMUNE FROM RETALIATION SUITS - While the U. S. Supreme Court has found that states generally have immunity from suit under Title I of the ADA, a federal district judge sitting in Philadelphia has found that no similar immunity applies to suits under the Act alleging retaliation under Title V of the Act. In his memorandum opinion in Roberts v. Department of Public Welfare, Senior Judge Edmund Ludwig denied a request for summary judgment, stating that retaliation claims raise a right under the First Amendment to the U. S. Constitution - the right to petition the courts - that is not subsumed by the Supreme Court’s decision in University of Alabama, et al. v. Garrett. Judge Ludwig added that the retaliation claim was not subject to the same arguments in favor of immunity used in Garrett. Gregory S. Roberts v. Pennsylvania Department of Public Welfare, et al., USDC EPa. No. 99- 3836, 2/ 21/ 02 ( http:// www. paed. uscourts. gov/ documents/ opinions/ 02D0134P. HTM).
TOPEKA PROTEST - Angry demonstrators crammed the Kansas statehouse March 26th as the state legislature debated a budget- balancing bill that could slash state spending on programs designed for people with disabilities. At issue were approximately $ 6.7 million in spending cuts. Read the story at http:// www. cjonline. com/ stories/ 032702/ leg_ protestlead. shtml.
“ OVR HELPS A FARMER STAY IN BUSINESS” - Richard Maurer is a Perry County farmer who was helped by the state Office of Vocational Rehabilitation to return to farming after two serious strokes. Read his story at http:// www. dli. state. pa. us/ landi/ lib/ landi/ pdf/ ovr/ overview3- 22- 02. pdf. You can also see the complete OVR 2001 Annual Report at http:// www. dli. state. pa. us/ landi/ cwp/ view. asp? a= 128& Q= 64970& landiPNav=| # 2750.
CALIFORNIA ORDERED TO ALLOW ACCOMMODATIONS ON STATE GRADUATION TEST - Like approximately half the states, California has instituted statewide graduation math and language testing. A passing score on the so- called “ exit exam” is required for California high school graduation beginning with the class of 2004. The use of accommodations such as calculators and reading aids in the exam is forbidden; if students with disabilities need such accommodations, their school district had to ADA News No. 98 - 33- April 15, 2002
apply for a waiver, which might or might not be granted. Concern about the effect of the requirement on students with learning and other disabilities provoked a lawsuit under the ADA, brought by Oakland- based Disability Rights Advocates. On February 21st, Judge Charles R. Breyer of Federal District Court in Oakland ruled that students with learning disabilities had the right to special treatment through different assessment methods or accommodations, such as the use of a calculator or the chance to have test questions read aloud. It was the first time a state had been ordered to adjust the conditions for its graduation exams for students with learning disabilities. When the test was given last year on a voluntary basis, nine out of ten California students with learning disabilities failed. Some education experts say they worry, however, that as more students seek special accommodations, the whole notion of standardized testing may break down. New York state already allows a range of alternatives for students with disabilities, including taking the regular test, giving oral presentations or presenting portfolios of their work. However, there is little scientific data on precisely which accommodations help which learning disabilities. Nevertheless, advocacy groups say that making a learning- disabled student take a standardized test without accommodations is as unfair as requiring a physically disabled child to run a race without a wheelchair. “ Standardized tests test students’ disabilities, not their abilities,” said Sid Wolinsky, a lawyer with Disability Rights Advocates. “ No matter how well they master the content that’s being tested, they will fail the exam if they have real problems with reading or handwriting.” In the meantime, California’s testing requirement has many parents of students with disabilities considering transfers to private or parochial schools, where the testing is not mandatory.
AREA CALENDAR -
􀂉 23rd International Conference on Developmental & Learning Disabilities; April 29- May 3, 2002; New York, New York; information at http:// www. yai. org/ Pid/ index. cfm, or via e- mail to awittenberg@ yai. org or fax to 212- 629- 4113
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Seminar on laws enforced by the EEOC; June 12, 2002 at the Richmond Marriott Hotel, Richmond, VA; and July 18, 2002 at the Hyatt- Regency Baltimore Hotel, Baltimore, MD; the EEOC will present two one- day seminars designed for human resource personnel, EEO officers, labor attorneys, business owners, and others who make employment decisions; for more information, call Erica Cryor, Program Analyst, at ( 410) 962- 4194, or ( 202) 663- 7071 for registration information, or browse to http:// www. eeoc. gov/ taps/ private. html and click on the appropriate location link
ADA News No. 98 - 34- April 15, 2002
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Third International Conference on Family Care; October 12- 14, 2002; Washington, DC; hosted by the National Alliance for Caregiving; forum for caregiving groups, advocates and policy makers from around the globe; more information at http:// www. caregiving. org/ content/ Conference2002. html
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International Perspectives: Global Voices for Gender Equity; November 15- 17, 2002; Washington, D. C.; organized by the American Association for University Women, symposium will explore four key global issues, especially in emerging nations: literacy improvement, governance, education for people with disabilities, and peace education & conflict resolution; more info at http:// www. disabilityworld. org/ conferences/ gendereqconf. shtml, or via fax at 202- 463- 7169 or e- mail to intsymp@ aauw. org
OLIVE GARDEN RESTAURANT SETTLES ADA LAWSUIT - The Olive Garden Restaurant has settled a lawsuit brought against it by a former employee who is mentally retarded for $ 125,000. The lawsuit was brought by the EEOC on behalf of the employee, who was harassed and fired from his job as a dishwasher. The lawsuit alleged that the man was frequently harassed by his coworkers, who called him offensive names, hid his bicycle, put him in headlocks and pulled his pants down in front of others. During this time, management did nothing to help him, and failed to notify any of his caregivers. He was fired when his performance deteriorated. The Olive Garden restaurant denied liability. As part of the settlement, Olive Garden, which has 478 restaurants and more than 60,000 employees, will provide nationwide training for its managers on disability- based harassment and reasonable accommodations for people with disabilities.
US DEPARTMENT OF EDUCATION UNVEILS NEW WEBSITE - The U. S. Department of Education is sponsoring the development of a free, user- friendly email program for persons with cognitive impairments. For complete information, visit the website at http:// www. think- and- link. org. The site has information for survivors, family, researchers, clinicians, and software developers, and a short survey that will help shape the final program.
INCLUDE PERSONS WITH DISABILITIES IN EMERGENCY PREPAREDNESS PLANNING - The National Organization on Disability has sent letters to fourteen U. S. cabinet officers, fifty governors, elected county officials, and mayors urging them to include people with disabilities in emergency planning. To further assist leaders in achieving this goal, the NOD has provided an online list of suggestions for locating community residents with disabilities. The NOD disaster preparedness information can be found at http:// www. nod. org/ cont/ dsp_ cont_ item_ view. cfm? viewType= itemView& contentId= 792& locationId= 6& contentTypeId= 99& fromLocHmePg= F& LineNbr= 1& StartRow= 1& timeStamp= 26- Feb- 0201: 57: 45.
ADA News No. 98 - 35- April 15, 2002
And while you’re visiting the NOD website, check out PageScreamer, a new free website accessibility tool. Check the accessibility of your website, or another favorite, at http:// www. nod. org/ cont/ dsp_ cont_ loc_ hme. cfm? locationId= 17.
SALT LAKE 2002 PARALYMPICS - Don’t miss the final recap of the 2002 Paralympics, held March 7th through 16th in Salt Lake City. Find results and other news at http:// www. paralympic. org.
CAN ABLE- BODIED AND WHEELCHAIR BASKETBALL PLAYERS MIX? - A six- year- old boy from Wakefield, Massachusetts, is about to find out. Colin Williams has played basketball, floor hockey and T- ball at recess and in church- sponsored leagues. But when he applied to play with able- bodied first and second- graders in a Wakefield Basketball Association program, his application was turned down. “ They’re afraid of my wheelchair, that if someone is running they’ll trip over my wheelchair and that would be a foul for me,” said Williams. “ Our concern is that one of the kids will get hurt running into his wheelchair,” said Joe Sancinito, president of the WBA. “ It could be anywhere from nothing happening to literally somebody getting killed,” Sancinito said. “ These kids are running, diving all over the floor for the ball. Sometimes it is mayhem out there.” Williams and his parents have filed a federal lawsuit under the ADA that tests the right of disabled children to participate in group sports. Stan Eichner, a lawyer for the Disability Law Center, which is representing Williams, said the case is about “ a young boy who is trying to live a full and complete life, just like any other boy.”
MISSOURI GOVERNOR APPOINTS BLIND JUDGE TO STATE SUPREME COURT - Governor Bob Holden has appointed Richard B. Teitelman, a judge on the Missouri Court of Appeals, Eastern District, to the Missouri Supreme Court. Teitelman will become the first legally blind judge to serve on that state’s highest court. “ Rick Teitelman has devoted his life to making the words ‘ justice for all’ a reality, not just an expression,” Governor Holden said. “ From the beginning of his career, he has fought for equal access to the courts for all – no matter what their background, race, gender or creed.” Teitelman was appointed to the Missouri Court of Appeals in 1997 after a 27- year career with Legal Services of Eastern Missouri, where he served as executive director and general counsel since 1980.
PARKING IN DC JUST BECAME A LOT MORE DIFFICULT - Angering the disabilities community, Washington DC has recently enacted a city ordinance requiring that vehicles parked in so- called “ handicapped parking spaces” display the DC parking permit in order to park for free. According to the ordinance, vehicles utilizing the spaces but displaying only placards from outside the district are not eligible for free parking, and must pay the appropriate parking fee or they will be ticketed. In addition, holders of DC placards, who formerly could park an unlimited time in the spaces, are now restricted to parking for only double the time allowed on the parking meter. Numerous protests have been lodged in this city that attracts perhaps more out- of- state drivers than any other.
NEW JERSEY HIGH COURT FINDS MORBID OBESITY A PROTECTED STATUS - The New Jersey Supreme Court found persons with morbid obesity to have protected status under the state’s Law Against Discrimination in a recent unanimous decision. The definition of “ handicap” in the New Jersey law is somewhat easier for a plaintiff to satisfy than that found in the ADA. “ The term ‘ handicapped’ in LAD is not restricted to ‘ severe’ or ‘ immutable’ disabilities,” stated the Court. That law “ does not incorporate the requirement that the condition result in a substantial limitation on a major life activity.” The opinion is not seen as throwing open the doors to anyone who is obese, but will make it possible for persons who experience significant health problems as a result of their obesity to bring claims of discrimination. Vicsik v. Fowler Equipment Company, N. J. S. Ct. No. A- 38- 01, 4/ 3/ 02 ( http:// lawlibrary. rutgers. edu/ courts/ supreme/ a- 38- 01. opn. html).
MINNEAPOLIS THEATER GROUP UNDETERRED BY DISABILITIES - Listen to the report from NPR’s Morning Edition by Minnesota Public Radio’s Marianne Combs, who reports on a theater troupe of actors and singers who have schizophrenia, Down’s Syndrome, and other disabilities. The troupe, called “ Interact,” is direct and often very funny about who they are. The troupe is off soon to tour Scandinavia. Combs’ report ( which requires RealPlayer) can be heard at http:// www. npr. org/ ramfiles/ me/ 20020326. me. 16. ram, or can be found on the NPR website at http:// search. npr. org/ cf/ cmn/ cmnpd01fm. cfm? PrgDate= 3% 2F26% 2F2002& PrgID= 3. Learn more about the group at the Interact Web site at http:// www. InteractCenter. com.
ADA News No. 98 - 36- April 15, 2002
ADA News No. 99 - 37- May 15, 2002
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" News Reviews to Peruse"
Number 99 May 2002
Items regarding disabilities law and 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 recent issues can be found online at http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ adanews_ index_ 2001. htm. All past issues of this publication are archived at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index. htm on the DEP internal website.
SUPREME COURT ISSUES BARNETT DECISION - After a four- month wait, disability- advocates received another disappointment from the U. S. Supreme Court when the Court issued its decision in US Airways, Inc. v. Barnett on April 29th. ( See ADA News No. 94, 12/ 15/ 01, http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ada_ news_ 94_ frontpage. htm) And what an unusual decision it was, gathering dissenting votes from Justices Thomas, Scalia, Ginsburg and Souter - four jurists who in the past have represented the poles of the legal ADA News No. 99 - 38- May 15, 2002
spectrum - and a concurring opinion from Justice O’Connor, in which she stated that, although she disagreed with Justice Breyer’s majority approach, she was nevertheless concurring in order to form a majority. Barnett presented the Court with the question whether a company’s unilaterally imposed seniority system could supercede an accommodation under the ADA. The Court’s answer - sometimes. The case involved a cargo handler who, after a back injury, had been given a less- demanding mailroom job, then was bumped by a more senior employee and fired when the mailroom job became subject to seniority- based employee bidding under US Airways’ seniority system, and US Airways refused to accommodate him by allowing him to remain in the job. The seniority system in question had not been bargained for collectively. Continuing its trend of narrowing the scope of the Act, the Court threw out the decision of the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) that the employee’s back injury gave him first choice of jobs at US Airways over his more senior co- workers, holding that a company seniority plan - even one imposed unilaterally - normally will trump an ADA accommodation, though not always. “ In our view, the seniority system will prevail in the run of cases,” Justice Breyer wrote. The presence of “ special circumstances” that “ might alter the important expectations created by a seniority system,” however, could allow the accommodation to hold up. “ The plaintiff might show, for example, that the employer, having retained the right to change the system unilaterally, exercises the right fairly frequently, reducing employee expectations that the system will be followed to the point where the requested accommodation will not likely make a difference,” wrote Justice Breyer for the majority. “ The plaintiff might also show that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to matter. The plaintiff has the burden of showing special circumstances and must explain why, in the particular case, an exception to the seniority system can constitute a reasonable accommodation even though in the ordinary case it cannot.” Justices Scalia and Thomas argued that the Court should provide greater protections for employers from employees’ ADA lawsuits, while Justices Ginsburg and Souter opined that an ADA accommodation should always trump seniority in a non- negotiated system. US Airways, Inc. v. Barnett, USSCt, No. 00- 1250, 4/ 29/ 02 ( http:// a257. g. akamaitech. net/ 7/ 257/ 2422/ 29apr20021100/ www. supremecourtus. gov/ opinions/ 01pdf/ 00- 1250. pdf).
To listen to an excellent analysis of the Court’s decision, browse to NPR legal reporter Nina Totenberg’s report at http:// www. npr. org/ ramfiles/ atc/ 20020429. atc. 08. ram ( requires RealPlayer).
HIGH COURT WILL NOT REVIEW NINTH CIRCUIT ACCOMMODATION DECISION - The U. S. Supreme Court has decided to allow the decision of the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) in Memorial Hospitals Association v. Humphrey to stand. Reported in ADA News No. 85, 3/ 15/ 01, ( http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ adanews_ 85/ ada_ news_ 85_ frontpage. htm), and ADA News No. 93, 11/ 15/ 01 ( http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ adanews_ 93/ ada_ news_ 93_ frontpage. htm), this case involves an employer that made attempts to accommodate a medical transcriptionist with obsessive- compulsive disorder whose ADA News No. 99 - 39- May 15, 2002
condition made it impossible for her to work a standard eight- hour shift. The employer accommodated the transcriptionist by allowing her to work her shift beginning whenever she arrived at work, but this accommodation failed. The employer denied the employee’s request to work from home or take an indefinite medical leave, and terminated her. The Appellate Court reversed a grant of summary judgment, and the High Court refused to grant the employer’s request for review. An amicus brief filed by the U. S. Solicitor General asserted that the case was not an “ appropriate vehicle” for review of the questions presented. The case below, which will now go back to the trial court, is Humphrey v. Memorial Hospitals Association, CA9, No. 98- 15404, 2/ 13/ 01 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ 04485f8dcbd4e1ea882569520074e698/ abd495f0e26fa48e882569f200608b6b? OpenDocument).
COURT LIMITS SOVEREIGN IMMUNITY DEFENSE - The U. S. Supreme Court handed down a decision on May 13th in a defamation case brought by a Kennesaw State University assistant professor against the university and the State Board of Regents, instructing states they can no longer move a case from state to federal court, then claim sovereign immunity and demand dismissal. The professor claimed that he was defamed by unsubstantiated allegations made during a sexual harassment investigation, and that he had been singled out because he is Jewish. The defendants petitioned successfully to remove the complaint from Cobb County Superior Court, where it was originally filed, to federal court, then sought to dismiss the claims on grounds that the Constitution grants state governments immunity from suits in federal court by private individuals. The Court’s opinion, written by Justice Stephen G. Breyer, bars state attorneys general and their staffs from removing a case to federal court and then seeking its dismissal on 11th Amendment grounds “ to achieve unfair tactical advantages.” Breyer wrote “ that a state’s voluntary appearance in federal court amounts to a waiver of its Eleventh Amendment immunity.” The Court also determined that the case does not include any valid federal claim against the state of Georgia or the Board of Regents. Lapides v. Board of Regents of the University System of Georgia, USSCt, No. 01- 298, 5/ 13/ 02 ( http:// a257. g. akamaitech. net/ 7/ 257/ 2422/ 13may20021500/ www. supremecourtus. gov/ opinions/ 01pdf/ 01- 298. pdf).
WHEELCHAIR CONFINES PARTY TO HIGH COURT’S GALLERY - As reported in ADA News No. 95, 1/ 15/ 02 ( http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ada_ news_ 95_ frontpage. htm), the U. S. Supreme Court in January added the ADA case of Barnes v. Gorman - which raised the question whether local governments can be forced to pay punitive damages for violating the ADA - to its docket. Arguments were heard in the Court’s chambers on Tuesday, April 23rd. Unfortunately for Mr. Gorman, the claimant in the case, there was no wheelchair accessible seat at the table, and he was required to observe the arguments from the back of the courtroom. He had been told by Court officers that he could have a reserved seat in the courtroom if he arrived ahead of the two- hour session, but his disability makes it impossible for him to sit that long. The fact that it was his case being heard did not convince Court officials to budge. “ He told them, ‘ This is my case,’” attorney Michael Hodges ADA News No. 99 - 40- May 15, 2002
said. “ Apparently that didn’t make a difference.” Federal courts, unlike state courts, are not required by the Act to be accessible or to make accommodations for persons with disabilities. A decision on the case is expected by July. Barnes v. Gorman, USSCt, No. 01- 682 ( http:// www. supremecourtus. gov/ docket/ 01- 682. htm).
ECONOMIC STIMULUS PACKAGE LACKS HEALTH CARE - The recently passed federal Economic Stimulus bill omitted any funding for healthcare. The Senate had wanted an increased federal share for Medicaid spending and subsidies for laid- off workers to buy health insurance, while the House passed bills that would have provided health block grants to states to help the unemployed. The bill did include a 13- week extension of unemployment insurance for workers who lost their jobs as a result of the September 11th attack.
DISABILITIES WEBSITE OF THE MONTH - Disability World webzine is a bimonthly online publication dedicated to advancing an exchange of information and research about the international independent living movement of people with disabilities. Available in English or Spanish, the attractive website offers readers information on varied topics including independent living, access and technology, employment, arts and media, women, children and youth, and book reviews. It is also a great source of international news about disability- related subjects. Take a glance at http:// www. disabilityworld. org/ index. htm.
“ TACTI- COM” ENABLES COMMUNICATION BY TOUCH - Inventor and former- Temple University student Scott Stoeffel and a group of Temple students have revolutionized a device invented by Stoeffel that will enable wireless communication with persons who have vision and hearing disabilities via an electronic Braille pad. The “ Tacti- com” sends electronic signals from a traditional keyboard to a black box, where the signals are translated into prescribed movements of six buttons on the box that can be “ read” with the palm of a user’s hand. The device can be used by a sighted, hearing person to communicate with someone who is blind and deaf without having to learn Braille or hand- sign language. Stoeffel, who is deaf and legally blind, invented a “ plugged- in” version of the device a year ago. The portable wireless version - which operates on two 9- volt batteries and does not require a computer - is expected to enhance the Tacti- com’s usefulness, as well as its commercial potential.
AREA CALENDAR -
􀂉 EEOC Technical Assistance Program Seminars ( TAPS); May 1, 2002 - Arlington, VA; June 12, 2002 - Philadelphia, PA & Richmond, VA; June 26, 2002 - Pittsburgh, PA; July 18, 2002 - Baltimore, MD; one- day seminars emphasize how to prevent EEO problems from developing and how to resolve discrimination complaints effectively when they do arise; human resource staff, business owners, managers, supervisors, state and local government officials, federal agency EEO staff, employment agency staff, union officials, attorneys and others will obtain useful information and guidance to help meet legal ADA News No. 99 - 41- May 15, 2002
requirements and provide equal opportunity in the workplace; for more information, visit the EEOC web site at http:// www. eeoc. gov/ taps/ private. html.
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Benefit Fashion Show and Tea; 2: 30 pm, Sunday, May 19, 2002; West Shore Country Club, Camp Hill, PA; sponsored by United Cerebral Palsy of Central Pennsylvania; Members 1st Federal Credit Union and WINK 104 FM; assorted teas, sandwiches and desserts at 3: 00 pm, followed by the fashion show portion of the afternoon with clothes from Creative Elegance, Sweet Peas and Painting Red Rhinos, and a silent auction
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14th Annual UCP Foundation Golf Classic 2002; 10: 30am, June 3, 2002; Lone Pine Golf Club, Washington, PA; deadline for registration is May 20, 2002; for more information, contact Jackie Newman at 724- 229- 0851 or jnewman@ ucpswpa. org
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“ Prevention, Resilience and Recovery: United for Mental Health;” June 5 - 8, 2002; Washington, DC; National Mental Health Association’s 2002 Annual Conference will explore strategies for promoting mental health and recovery from mental illness; for more information, contact 800- 969- NMHA ( 6642) or visit http:// www. nmha. org/ annual/ index. cfm
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16th Annual UCP/ Harrisburg Senators Sports Auction 2002; Saturday, June 8, 2002; Riverside Stadium Carousel Pavilion, City Island, Harrisburg, PA; unique memorabilia auction for benefit of UCP- sponsored programs; questions can be directed to Jennifer Brubaker at jbrubaker@ ucpcentralpa. org or Chris Stotz at cstotz@ uspcentralpa. org, or call ( 717) 975- 0611
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Rehabilitation Act reauthorization hearings; 10 am, June 19, 2002; U. S. Department of Education, Barnard Auditorium, 400 Maryland Ave, SW, Washington, DC; public meetings and requests for written comments on implementation of the Rehabilitation Act of 1973 ( http:// www. eeoc. gov/ laws/ rehab. html), which must be reauthorized next year; for more information, or to attend or give a brief presentation, make a reservation by contacting Tammy Nelson, DOE, 400 Maryland Avenue, SW, Room 3214, Mary E. Switzer Building, Washington, DC 20202- 2531, Tel.: ( 202) 205- 9005 ( V), ( fax) ( 202) 260- 7527, ( TTY) ( 202) 205- 5538, or via e- mail at tammy. nelson@ ed. gov
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 “ Simplified Web Accessibility Guide,” a publication available on the web in HTML or . PDF format, introduces and presents the WebContent Accessibility Guidelines from the Worldwide Web Consortium in an easy to understand, easy to use question and answer ADA News No. 99 - 42- May 15, 2002
format. This is a good jumping- off point for developers trying to make their websites more accessible. Http:// www. webaccessguides. org
DOT ANNOUNCES SETTLEMENT WITH NORTHWEST AIRLINES - U. S. Transportation Secretary Norman Y. Mineta has announced the U. S. Department of Transportation has approved a settlement with Northwest Airlines regarding the carrier’s treatment of air travelers with disabilities. ( See ADA News No. 79, 9/ 15/ 00, http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ADA_ News_ 79. htm) Under the settlement, Northwest agreed to cease and desist from future violations of DOT’s rules prohibiting discrimination against passengers with disabilities, and agreed to pay a civil penalty of $ 700,000, part of which may be offset by measures to improve the carrier’s services to passengers.
WHEELCHAIR DEMONSTRATORS SNARL DC TRAFFIC - Wheelchair- using members of ADAPT held a “ rolling demonstration” May 13th to protest what they see as inequitable treatment of persons with disabilities. The protestors blockaded the new Executive Offices, and tried to present their grievances to the White House. Story at http:// www. wjla. com/ news/ showstory. hrb? f= n& s= 41899& f1= loc.
A MOMENT IN DISABILITIES RIGHTS HISTORY - Twenty- five years ago last month, a small but determined group of protestors with disabilities gathered in San Francisco to stage a sit- in at the federal office building, demanding enforcement of Section 504 of the Rehabilitation Act of 1973. Weeks later, more than 100 protestors remained, despite the efforts of government and law enforcement officials to make them leave. Nearly four weeks after the protestors gathered, Health, Education and Welfare Secretary Joseph Califano endorsed the Section 504 regulations, handing the movement a monumental victory. Read and listen to more about this watershed event in the history of the disabilities rights movement on the National Public Radio website at http:// www. npr. org/ programs/ wesun/ features/ 2002/ 504/ index. html.
VACANT? WHAT DO YOU MEAN, THE POSITION’S VACANT? - The U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, NM, KS, OK) tried to answer just that question a few months ago. Under the ADA, employers must reasonably accommodate qualified employees, including reassigning them to vacant positions if other accommodations would not be effective. The Court settled the confusion in the circuit created by different trial court definitions of the term, holding that “ vacant” includes positions at the moment vacant and those that will be become vacant in the “ fairly immediate future.” The Court said that “ fairly immediate future” refers to the employer’s subjective knowledge of an upcoming opening. “[ A] position is ‘ vacant,’ for purposes of considering whether an employer has a duty to transfer a disabled employee to that position … only if the employer knows, at the time the employee asks for a reasonable accommodation, that the job opening exists or will exist in the fairly immediate future,” wrote Circuit Judge Ebel for the Court. “ A position is not vacant if … the employer did not know at the time the employee asks for a reasonable accommodation that the position would become vacant in the fairly immediate ADA News No. 99 - 43- May 15, 2002
future, even if it did in fact open up a reasonable time after the employee’s request had been made.” Oh yeah, that’s perfectly clear. Bristol v. Board of County Commissioners of Clear Creek, CA10, No. 00- 1053, 2/ 26/ 02 ( http:// www. kscourts. org/ ca10/ cases/ 2002/ 02/ 00- 1053. htm).
DON’T MESS WITH A WOMAN AND HER POMERANIAN! - A determined woman with hearing loss and her “ service animal” Pomeranian has changed policy at Wal- Mart, the nation’s largest retailer. The woman was gradually losing her hearing in 1997 when she entered a Wal- Mart store with a Pomeranian dog that had been trained to help her distinguish where sounds were coming from, she charged in a lawsuit. She said in the lawsuit that several Wal- Mart employees refused to allow her to shop with the animal, repeatedly asked to see the dog’s certification as a guide animal and refused to let her put the small dog in a shopping cart. According to the lawsuit, the harassment continued even after her doctor was contacted by Wal- Mart employees. She filed a complaint against the store with her state human right commission, which found reasonable grounds to believe that she had been discriminated against on the basis of her disability. In March, Wal- Mart settled the lawsuit, promising “ to adopt a policy ‘ fully compliant’ with the requirements of the Americans With Disabilities Act, to train employees about that policy and to provide [ the customer] with a letter saying she was entitled to enter all Wal- Mart stores in Vermont and New Hampshire without any certification for her service animal.” The concept of a “ service animal” has expanded in recent years beyond the traditional seeing- eye dog. Dogs, cats and other pets have been prescribed to accompany people who suffer from hearing, mobility, anxiety and other disorders.
PA. HOUSE BILL WOULD PROTECT SERVICE DOGS- House Bill 2445, passed by the Pennsylvania House on May 7th, proposes amending the state crimes code to make it a third- degree felony to kill, maim or disfigure a service dog for “ an individual who is physically limited.” The bill also imposes upon a perpetrator the costs of veterinary care or replacement and training of the service dog. Http:// www. legis. state. pa. us/ WU01/ LI/ BI/ BT/ 2001/ 0/ HB2445P3888. HTM.
EMPLOYEE FIRED, BUT NOT FOR DISABILITY - The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) has affirmed the judgment of a lower federal court in a case involving a service manager fired from his job with Mostardi Platt Associates, Inc., an Illinois- based environmental consulting firm. The manager had a history of complications from arthritis that worsened in 1996 and required his taking substantial time off work. After depleting his sick leave, he required surgery on a knee, for which he took two weeks of vacation time. On his return to work, he was informed that he would be required to undertake an assignment requiring travel. The manager refused the assignment, informing his supervisor that he “ may never be able to do the same kind of physical work” that he had “ been able to do in the past.” The company suggested placed him on Family and Medical Leave Act ( FMLA) leave, despite resistance from the manager. While the manager was on leave, the company discovered “ that a laptop [ the manager] had used had been tampered with, that a customer database had been improperly saved on its hard drive, and that the computer had been used for personal purposes, including the sending of communications to a ADA News No. 99 - 44- May 15, 2002
competitor that were derogatory of Mostardi- Platt.” The manager was fired when he refused to cooperate in the investigation of his alleged computer misuse. The manager sued alleging he was fired because of his disability, and the employer defended that he was actually fired for computer misuse and inappropriate behavior. The trial court granted summary judgment, and the manger appealed. Although finding that the manager had submitted sufficient evidence of the existence of a disability to survive summary judgment, he had failed to provide evidence that his termination was connected in any way to his alleged disability. Dvorak v. Mostardi Platt Associates, Inc., CA7, No. 44- 4309, 5/ 10/ 02 ( http:// www. ca7. uscourts. gov/ op3. fwx).
USDOJ SUES SFX ENTERTAINMENT - The U. S. Department of Justice announced on April 9th that it had sued SFX Entertainment over the entertainment giant’s policy of prohibiting concert goers with insulin- dependent diabetes from carrying their medical supplies into concerts. The lawsuit, filed in the U. S. District Court in Philadelphia after attempts at negotiating a voluntary settlement proved fruitless, alleges that individuals with diabetes, who require insulin and immediate access to their blood testing equipment and insulin, are forced by SFX’s policy to choose between being barred from concerts or taking unreasonable health risks. “ Individuals with diabetes are entitled to attend and enjoy community events, like anyone else, without putting their lives at risk,” said Ralph F. Boyd, Jr., Assistant Attorney General for Civil Rights. “ SFX’s policy is unnecessary and reflects outdated fears about individuals with disabilities.” SFX Entertainment Inc. which does business as Clear Channel Entertainment, is the world’s largest concert promoter.
INTERNATIONAL DISABILITY FILM FESTIVAL - From September 26- 29, 2002, Moscow, Russia will host its first international disability film festival. The festival is being organized by Russia’s leading independent living and disability rights group, Perspektiva, with the assistance of Rehabilitation International. If you have an outstanding disability- themed video or film produced since 1995 that you would like to enter in the festival, contact the Russian organizer, Denise Roza via email for application forms at Droza@ online. ru. Deadline to submit films & videos is May 30, 2002. See more online at http:// www. disabilityworld. org/ 01- 03_ 02/ arts/ moscowfestival. shtml.
HYPERTENSE SUPERVISOR SUBSTANTIALLY LIMITED IN “ SOCIALIZING” - In a rather surprising decision that just came to my attention, the federal district court in Philadelphia in October 2000 denied summary judgment in a case involving a production supervisor with “ uncontrollable hypertension” who, the court opined, could be substantially limited in the “ major life activities of interpersonal relations and socializing.” After experiencing dizziness at work from his hypertension, the supervisor was ordered by his doctor to no longer work the eleven- to- seven leg of the employer’s rotating shifts, and to work no more than forty hours a week. He was given a different job as an accommodation but, on his return from an unrelated FMLA leave, he was told that the job no longer existed and was terminated. The supervisor sued under the ADA, and the employer moved to dismiss, arguing in part that the supervisor was not a qualified individual with a disability. Citing other trial decisions as precedent, the court decided that “ interpersonal relations and socializing are major life activities,” concluding that “ a jury could reasonably conclude that [ the supervisor] is substantially limited in the major life activity of interaction with others.” “ There is evidence that anytime [ the supervisor] becomes involved in a stressful social situation or argument, his blood pressure will rise to a dangerous level,” wrote Judge Clarence Newcomer. “ Thus, [ he] must avoid stressful situations, arguments, heated debates, and emotional conversations at all costs. Consequently, a question of fact exists whether plaintiff’s inability to enter into stressful situations, interpersonal or otherwise, is a substantial limitation on his ability to interact with others.” Sorry, but no further information about this case was available at press time. Garvey v. Jefferson Smurfit Corporation, EDPa., No. 00- 1527 ( SJ), 10/ 24/ 00 ( http:// www. paed. uscourts. gov/ documents/ opinions/ 00D0804P. HTM).
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ADA News No. 100 - 46- June 15, 2002
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" News Reviews to Peruse"
Number 100 June 2002
Items regarding disabilities law and 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 recent issues can be found online at http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ adanews_ index_ 2001. htm. All past issues of this publication are archived at http:// intradep/ ChiefCounsel/ ADANews/ adanews_ index . htm on the DEP internal