ADA news news reviews to peruse.

              ADA NEWS
2003
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" News Reviews to Peruse"
Number 107 January 2003
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. This is a free publication available in electronic and printed format to anyone who is interested. Subscription requests, 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). 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. 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. 107 - 1- January 17, 2003
ADA News No. 107 - 2- January 17, 2003
WISHING YOU A HAPPY, HEALTHY 2003!
STATES’ IMMUNITY AGAIN ON SUPREME COURT’S AGENDA - The U. S. Supreme Court will be asked this term to decide whether Title II of the ADA allows a state to be sued by an individual with a disability seeking to make state programs and services more accessible. The case involves a California doctor denied a medical license because of a history of mental illness. The trial court dismissed his suit under the ADA, finding that it was barred by the state’s immunity under the 11th Amendment, but a panel of the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) reversed. The difference in opinion between the trial and appellate courts boiled down to whether the Supreme Court’s 2001 decision in University of Alabama v. Garrett bars suits under Title II as well as Title I of the Act. A divided Appellate Court refused to grant a rehearing by the entire court, prompting dissenting judges to state: “ Stubbornly extending enforcement of Title II of the ADA against the nine western states, today’s opinion blithely ignores recent Supreme Court precedent. This decision cannot possibly be right.” Whether or not will be decided this year. Medical Board of California v. Hason, USSCt No. 02- 479, cert. granted 11/ 18/ 02 ( http:// www. supremecourtus. gov/ docket/ 02- 479. htm) ( decision of Ninth Circuit Court at http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ 597EECBCC4409AE788256BE30080E9FE/$ file/ 0055784o. pdf? openelement).
McDONNELL DOUGLAS TEST NOT APPROPRIATE IN REASONABLE ACCOMMODATION CASE - In a recent interesting decision, the Pennsylvania Commonwealth Court reviewed an employment discrimination decision of the Pennsylvania Human Relations Commission. The Commission found that the employer, a Philadelphia- based vending services supplier, violated Section 5( a) of the Pennsylvania Human Relations Act ( 43 P. S. § 955( a)) when it illegally discriminated against an accounting clerk by failing to reasonably accommodate her disability. The clerk experienced a back injury in 1987 that limited her ability to lift. In 1999, the employer directed several of its employees, including the clerk, to cross train in a job that required lifting. She expressed concerns about the lifting requirement to her supervisor and, at the employer’s request, submitted a note from her doctor that stated, “ This patient is to be doing a permanent restriction of sedentary type work, and she should avoid any lifting or bending activities” [ sic]. The employer initiated a conference call with the employee, during which the employer’s human resources director conjectured that this note prohibited her from even “ lifting a pencil or picking up a piece of paper.” With little input from the clerk, the employer terminated her, stating that she was no longer capable of doing any part of her job safely. On appeal, the Commonwealth Court dismissed the employer’s argument that the Commission should have applied the McDonnell Douglas burden- shifting analysis, holding that the proper analysis in a reasonable accommodation case requires rather that a plaintiff establish a prima facie case: 1) that she is a qualified person with a disability; and 2) that she “ has suffered an otherwise adverse employment decision as a result of discrimination.” Second, the court found that it was not ADA News No. 107 - 3- January 17, 2003
reasonable for the employer to rely solely on the doctor’s note, which it interpreted as prohibiting her from any work. Instead, the court held that the note “ placed a burden on [ the employer] to engage [ the employee] in an interactive process to determine what her limitations were and whether they could be reasonably accommodated.” For those of you in supervisory positions, this decision highlights the importance of being aware of accommodation requests and of having a meaningful discussion with a person making one. Canteen Corporation v. PHRC, Pa. Cmwlth. Ct. No. 1258 C. D. 2002, 12/ 3/ 02 ( http:// www. courts. state. pa. us/ OpPosting/ CWealth/ out/ 1258CD02_ 1- 2- 03. pdf).
DISABILITIES WEBSITE OF THE MONTH - The “ Consultants’ Corner” is your resource for helpful hints, techie tips, and innovative ideas regarding job accommodations and the Americans with Disabilities Act. Consultants with the Job Accommodation Network ( JAN) offer this site in English and Spanish to share information regarding accommodations and legislation. JAN is not a legal or medical service so is not able to give legal or medical advice; but JAN consultants have years of experience in providing information about job accommodations and want to share this information with you. Sample articles deal with issues such as service animals and allergies in the workplace; parking and the ADA; seasonal affective disorder; and accommodations for the interviewing process. While at the website, register to be notified whenever the site is updated with new helpful hints. Http:// www. jan. wvu. edu/ corner/ index. htm
DISABLED OFTEN VICTIMS OF HATE CRIMES - Under the Hate Crime Statistics Act of 1990, the FBI has been required since 1997 to collect data on disability hate crimes. According to the author of a new report - Don’t Ask, Tell or Respond: Silent Acceptance of Disability Hate Crimes - the number of reported hate crimes against persons with disabilities in the latest agency report ( 1999) is far higher than predicted by their actual representation in the general population. And, according to author Mark Sherry, this is true even though hate crimes against persons with disabilities are demonstrably under- reported. “ It’s no surprise that hate crimes are under- reported, but the disparity between reporting disability hate crimes and other crimes is staggering,” said Jack Glaser, assistant professor at UC Berkeley’s Goldman School of Public Policy. “ According to Mark’s analysis, disability hate crimes are not just under- reported, they are virtually un- reported. The number of media stories outnumber the statistics.” For instance, says Sherry, even the most notorious disability bias crime in U. S. history - the 1999 kidnap and torture of cognitively disabled Eric Krochmaluk of Middletown, N. J. ( see story in Inclusion Daily Express) - was not reported in the FBI data. The incident was the first disability hate crime to go to trial in the U. S. Among disabled people, he said, hate crimes are often mislabeled “ abuse” and dealt with through counseling as opposed to criminal prosecution. Http:// www. berkeley. edu/ news/ media/ releases/ 2002/ 12/ 18_ crimes. html
AREA CALENDAR -
ADA News No. 107 - 4- January 17, 2003
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Writing Accessible Websites; January 23, 2003 and May 30, 2003; Center for Technology in Education, The Johns Hopkins University, Columbia, MD; presented by Dan Allen of Temple University; for more information, call the Maryland Technology Assistance Program at 1- 800- 832- 4827 ( V/ TTY), or register at http:// www. mdtap. org/ dbtac/ eitform. html
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Sixth Annual ALLIANCE National Conference; January 29, 2003; Hyatt Regency Capitol Hill, Washington, DC; critical issues in training and information for parents of youth with disabilities; info at http:// www. taalliance. org/ conference/ index. htm, or contact Lisa Perkins or Kelly Lorenz at 888- 248- 0822
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The ADA & Reasonable Accommodations in the Workplace; February 3 - March 17, 2003; Online course; sponsor: Rehabilitation Research & Training Center ( RRTC) on Workplace Supports at Virginia Commonwealth University ( VCU); designed to cover a wide range of topics that will appeal to employers, human resource professionals, first line supervisors, and rehabilitation professionals; for more information, visit http:// www. worksupport. com
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National Network for Youth Symposium 2003; February 9, 2003; Washington, DC; conference brings together diverse group of youth- serving professionals, advocates, and young people eager to gather exciting new information and discover sound skills to strengthen their practice and professional development; info at http:// www. nrcys. ou. edu/ symposium2003. html, or contact Donna Bruce at dbruce@ nn4youth. org, or 202- 783 - 7949, ext 3105
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Art and Science of Health Promotion Conference; Feb 17, 2003 - Feb 21, 2003; Washington, D. C.; sponsored by the American Journal of Health Promotion; contact info at www. healthpromotion conference. org, or 248- 682- 0707
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20th Annual Employment Law and Legislative Conference; March 10, 2003; Capitol Hilton, Washington, D. C.; sponsored by the Society for Human Resource Management ( SHRM); attendees will have the opportunity to learn about grassroots lobbying and will be invited to serve in a vital role as a representative of the human resource profession on Capitol Hill; guests include Senator Fred Thompson and Robert Reich, former U. S. Secretary of Labor; info at http:// www. shrm. org/ conferences/ leg/ index. html, or contact SHRM at shrm@ shrm. org or 800- 282- 7476
COURT WAIVES DEADLINE AS REASONABLE ACCOMMODATION - An upstate New York judge has held for the first time that the court must reasonably accommodate a visually- impaired attorney who breached the time restrictions for submitting a judgment. New York State Supreme ADA News No. 107 - 5- January 17, 2003
Court Justice Robert F. Julian said a requirement that mandates submission of a judgment within 60 days and deems the order abandoned if the time limit is missed can be waived because of an attorney’s disability. Finding that the “ courtroom and court system constitute the trial lawyer’s workplace,” and that the workplace “ logically extends to the preparation of documents associated with litigation,” Justice Julian held that the attorney was owed an accommodation. It is the first decision in New York to hold that the time restriction can be lifted to accommodate a physical disability.
UNEMPLOYMENT HIGH AMONG MENTALLY ILL - According to the Interim Report to the President’s New Freedom Commission on Mental Health, the unemployment rate among adults with serious mental illness is ninety percent, “ the worst level of employment of any group of people with disabilities.” The report states that many of these people want to work and could work with “ modest assistance.” The high rate “ is a national travesty,” said Robert Bernstein, director of the Bazelon Center for Mental Health Law.
TARGET STORES SETTLES WITH EEOC - The U. S. Equal Employment Opportunity Commission ( EEOC) announced the settlement of a Title I, ADA disability discrimination lawsuit filed against Target Corporation for $ 95,000 to be paid to a former employee. The EEOC’s lawsuit said that Target failed to provide a reasonable accommodation to a qualified employee with multiple sclerosis when it refused to transfer her to a vacant position after her disability interfered with her ability to perform her current job. Additionally, the EEOC contended that a Target supervisor had disclosed confidential information regarding her disability to another prospective employer. In addition to the monetary payment to the employee, Target agreed to provide training to its management personnel, maintain records as required by federal law, and continue to maintain its anti- harassment policy. “ The ADA requires that an employer make reasonable accommodations for the disabilities of its qualified employees, and that it keep medical information about its employees confidential," said Chester V. Bailey, the EEOC’s District Director in Milwaukee.
EAGLE/ TURKEY AWARDS ANNOUNCED - Disability Rights Advocates ( DRA), a major California- based national disability law center, gave its sixth annual ADA Eagle and Turkey Awards on November 26th. The Eagle awards are presented to businesses and individuals who actively employ and accommodate people with disabilities or who have contributed to the advancement of people with disabilities within society. The Turkey awards are given to entities or individuals who demonstrate pronounced insensitivity to the needs of people with disabilities and therefore impede their progress in employment, education, health care, transportation, or social integration. “ DRA is proud of this year’s Eagle awardees and we hope that they will be models for others in the future,” said Larry Paradis, Executive Director of Disability Rights Advocates and a wheelchair user himself. “ They have placed a value on disability access, a rare quality to find in today’s society.” DRA Eagle Awards went to the J. Paul Getty Museum for ADA News No. 107 - 6- January 17, 2003
its successful utilization of universal design; the Portland International Airport for its commitment to providing excellent access to deaf and hard- of- hearing travelers; AlphaSmart, a technology company that produces affordable and easy- to- use computing devices; and Fannie Mae for its HomeChoice mortgage loan program, which is designed to enable low- and moderate- income borrowers who have disabilities or who live with family members who have disabilities to purchase homes. Turkey Awards were given to the California State Board of Education for its recently implemented High School Exit Exam; the State of Louisiana; Walgreens Corporation; and to the U. S. Treasury. Http:// www. dralegal. org/ awards
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. eeoc. gov/ publications. html, or by calling 1- 800- 514- 0301( V) or 1- 800- 514- 0383( TTY).
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The January edition of OVeRVIEW, the monthly magazine of the Office of Vocational Rehabilitation, features an article about an OVR customer who founded a Women’s Health Boutique, a specialty, health- related franchise that caters to women’s special health needs, especially after breast cancer. Read the article at http:// www. dli. state. pa. us/ landi/ lib/ landi/ pdf/ ovr/ overview1- 15- 03. pdf.
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Overcoming Workplace Barriers is a Microsoft essay on technology and society that examines how software and assistive devices enable people with disabilities to pursue their career dreams and help businesses to benefit from their skills and experience. Read this essay at http:// www. microsoft. com/ issues/ essays/ 2002/ 07- 15accessibility. asp.
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Information for Developers of Accessible Technology - Microsoft’s developer network has a Web area dedicated to helping developers produce technology that is accessible to people with disabilities and others who have accessibility needs. Visit http:// www. msdn. microsoft. com/ at.
IMPAIRED, BUT NOT DISABLED - A Philadelphia Housing Authority police officer recently found out that, though his depression could qualify as an impairment under the ADA, his depression did not substantially limit his ability to work or relate to others, and therefore was not a disability. After an argument with his supervisor, the officer was suspended, then assigned to an alternative position, and PHA requested he submit to an independent psychological examination. The recommendation of the examining physician was that the officer should be temporarily assigned to non- patrol duties. When the officer refused to return to work or request additional sick leave, he was fired. The officer sued the PHA, charging that he had been fired because of his disability, depression, claiming it substantially limited him in his ability to work and to interact with others. The U. S. District Court for the Eastern District of Pennsylvania found that the officer was not limited in a broad class of jobs, that any impairment was temporary, and ADA News No. 107 - 7- January 17, 2003
that he was not generally limited in his ability to socialize with other people. Williams v. Philadelphia Housing Authority, USDCt. EDPa., No. 00- 1709, 10/ 02 ( http:// www. paed. uscourts. gov/ documents/ opinions/ 02D0792P. HTM).
THEN AGAIN, MAYBE TOO DISABLED - The U. S. District Court for the Eastern District of Pennsylvania decided another interesting ADA case in November, with the same result, though for different reasons. The case was brought by a Bell Atlantic service representative who was unable to work for approximately two years because of depression and seizures. The company had a disability plan that provided benefits for 52 weeks. If an employee was unable to return after one year, she was dismissed. After the service representative was determined to be still totally disabled after one year, and was dismissed, she applied for and received long- term disability benefits. The representative’s ADA and PHRA claims against Bell, however, were dismissed by the court. First, the court found that all indications were that the representative was totally disabled, and unable to work in any job. The ADA provides protections only to a “ qualified” person with a disability, or one who is able to perform the essential functions of her job with or without a reasonable accommodation. The representative had told several people that she was unable to work in any job on a full- or part- time basis, and she stated she was totally and permanently disabled when applying for long- term benefits, a statement that was not reconciled by the representative with her ADA claim. Finally, the court found that the representative had been fired for a legitimate, nondiscriminatory reason - the company’s disability leave policy. The case is Shafnisky v. Bell Atlantic, Inc., USDCt. EDPa. No. 01- 3044, 11/ 5/ 02 ( http:// www. paed. uscourts. gov/ documents/ opinions/ 02D0802P. HTM).
EMERGENCY PREPAREDNESS - Last month, the National Organization on Disability published a guide for planners to include people with disabilities in their planning before, during and after an emergency. The guide contains information everyone should know about the needs of people with disabilities in planning for emergencies. Read what Business Week Online columnist John Williams thinks of the guide by visiting http:// nod. org/ cont/ dsp_ cont_ item_ view. cfm? viewType= itemView& contentId= 1282& fromLocHmePg= T& fromLocationId= 12& timeStamp= 08- Jan- 0302: 23: 28.
SURVIVOR: THE AMAZON - According to Eonline, the cast for CBS’ Survivor: The Amazon will include the series’ first person with a disability. “ The camera- ready squatters,” says Eonline, “ include an actor, computer projects coordinator, principal, tax accountant, contractor, restaurant designer, marketing director, saleswoman, gym teacher, guide for the deaf and a school guidance counselor ( herself deaf - the first time the reality show has had a contestant with a physical disability).” The show will be set by the remote Rio Negro river in the heart of the Amazon in Brazil.
ADA News No. 107 - 8- January 17, 2003
DAMAGES CAPPED? MAYBE NOT - The Civil Rights Act of 1991 provided limits ( caps) on the amount of monetary damages recoverable in various employment- related claims, including claims under the ADA. Employers could take some satisfaction in knowing that, although substantial damages were still obtainable, they would be able to avoid million dollar verdicts. That may depend on whether a claimant has a parallel state claim, however, according to a recent decision of the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI). In September 2001, an ADA claimant was awarded $ 2 million in compensatory damages and $ 500,000 in punitive damages by a jury in her claims brought under the ADA and the Pennsylvania Human Relations Act ( PHRA). The jury did not attribute a specific damage amount to either claim. The employer made a typical post- trial motion to reduce the award to comply with the law, but the trial court agreed only to reduce the punitive damage award to $ 300,000. ( Under the Civil Rights Act, $ 300,000 is the maximum award based upon the employer’s number of employees.) The court allowed the $ 2 million award to stand, however, as it found that this award had been made under the PHRA, and therefore not subject to the Act’s caps on damages. The employer appealed, asserting that the cap should apply to the entire award. Not so, said the Appellate Court. The Civil Rights Act “ does not prevent a claimant from recovering greater damages under a state law claim that is virtually identical to a capped federal claim,” wrote Circuit Judge Paul R. Michel for the Court. As punitive damages are not available under the PHRA, the Court found them alone clearly attributable to the federal claim and thus subject to the caps. Gagliardo v. Connaught Laboratories, CA3, No. 01- 4045, 11/ 22/ 02 ( http:// www. ca3. uscourts. gov/ opinarch/ 014045. txt).
VISION CARE OFFICE MAY NOT REFUSE DEAF - A deaf man in Washington, D. C. was recently awarded $ 19,000 in damages by a jury that heard his claim that United Optical, a vision care office, refused to schedule an appointment, informing him that persons with severe hearing impairments “ take too much time.” The jury found the office policy to be in violation of the ADA and the D. C. Human Rights Act.
ARE STATE AGENCIES DISCRIMINATING AGAINST LEADER DOGS? - Guide Dog Users, Incorporated ( GDUI), an affiliate of the American Council of the Blind and the largest organized group of guide dog users in the world, has filed a formal complaint with the U. S. Department of Justice, against discriminatory practices in various government- run rehabilitation agencies. The Iowa Department for the Blind, the complaint states, violated Title II of the ADA as well as Section 504 of the 1973 Rehabilitation Act by denying rehabilitation training to a blind woman who sought to attend computer training classes with her guide dog. The woman applied and was accepted by the Iowa Department. She arrived at the Department, accompanied by her leader dog, to attend a computer training course, but was turned away and told that she could not attend the class if she was accompanied by her leader dog and that blind people are only allowed to travel with long mobility canes while attending the center. “ It is unbelievable that an agency which receives federal and state money to provide rehabilitation training to blind consumers would deny one of those consumers the ability to travel with her mobility aid of choice," said Sheila Styron of Los Angeles, Director of Public Relations for GDUI.
SUPERFEST XXIII CALL FOR ENTRIES - The Corporation on Disabilities and Telecommunication’s ( CDT) annual International Media Festival on Disabilities, Superfest XXIII, is seeking entries of works about disability or by mediamakers with a disability. Works produced since January 1998 are eligible. Entry fees range from $ 20 to $ 90. Winners will be screened in the San Francisco Bay Area. Final entry deadline is January 31, 2003. For more information and an entry form, visit http:// www. madknight. com/ cdt, or e- mail Superfest@ aol. com.
CONGRATULATIONS TO GOVERNOR AND GINNY THORNBURGH - The American Association of People with Disabilities has announced that the recipients of its annual Henry B. Betts Award will be former Pennsylvania Governor Dick Thornburgh and his wife, Ginny Thornburgh. Both have long résumés of work involving the disabilities community. Ginny Thornburgh is the Director of the Religion and Disability Program of the National Organization on Disability, and for more than thirteen years has focused on making congregations and seminaries more welcoming to people with disabilities. Dick Thornburgh is a founding member of the N. O. D. and currently serves as Vice- Chairman of the World Committee on Disability. The Henry B. Betts Award is named in honor of Henry B. Betts, M. D., a pioneer in the field of rehabilitation medicine who started his career with the Rehabilitation Institute of Chicago in 1964. The Thornburghs will be presented with the award by the AAPD and the Rehabilitation Institute of Chicago at the AAPD Leadership Gala on March 4, 2003 at the Washington ( DC) ilton & Towers. For ticket information, call 703- 556- 4245, or TTY 703- 556- 0448.
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ADA News No. 107 - 9- January 17, 2003
ADA News No. 108 - 10- February 15, 2003
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" News Reviews to Peruse"
Number 108 February 2003
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. This is a free publication available in electronic and printed format to anyone who is interested. Subscription requests, 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). 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. 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.
FEBRUARY IS AMD/ LOW VISION AWARENESS MONTH - Age- related macular degeneration is a leading cause of vision loss, affecting 1.6 million Americans age 50 and older. AMD is characterized by the loss of central vision, usually in both eyes. For information on eye disease warning signs and treatment, contact Prevent Blindness America at http:// www. preventblindness. org.
EMPLOYER NEED NOT CREATE JOB AS ACCOMMODATION - The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) agreed with a federal trial judge that a lighting manufacturer was not required to create a new job for a worker whose shoulder injury prevented her from doing all of the duties of her assembly line job. When the worker injured her shoulder, the employer assigned her to a light- duty temporary position. When it was determined that her injury would permanently prevent her from performing tasks involved in her former job, the employer dismissed the worker and she sued, alleging a failure to accommodate her by making her light duty job permanent. The trial judge ruled that the employer was not required to create a new position to “ fit” her restrictions, and the Appellate Court agreed. The Court stated that, insomuch as the employer required all of its assembly line workers to rotate through all positions on the line, including those her impairment prevented her from doing, and that there was a legitimate business reason for rotation, the worker was therefore no longer a “ qualified individual” for the job. The Court concluded “ that the ADA does not require an employer that sets aside a pool of positions for recovering employees to make those positions available indefinitely to an employee ADA News No. 108 - 11- February 15, 2003
whose recovery has run its course without restoring that worker to her original healthy state.” Watson v. Lithonia Lighting and National Service Industries, Inc., CA7, No. 02- 1423, 9/ 20/ 02 ( http:// www. ca7. uscourts. gov/ op3. fwx? submit1= showop& caseno= 02- 1423. PDF).
THIRD CIRCUIT EXAMINES STATE IMMUNITIES - In an opinion that will probably be of interest primarily to attorneys and academics, the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) last August decided an appeal from a District Court decision under Titles I and II of the ADA and Section 504 of the Rehabilitation Act. The case involved the failure to accommodate and discrimination claims of a former employee of the Pennsylvania Department of Corrections. The employee was denied accommodation for his injured back, and was subsequently fired for poor performance. The trial court dismissed the employee’s claims in the wake of the Garrett decision by the U. S. Supreme Court, finding that Congress had not properly abrogated the states’ immunity by the ADA or the Rehabilitation Act, and that the Commonwealth had not waived its immunity under the latter. The Appellate Court reversed in part, finding that the lower court had erred in finding that the Commonwealth had not waived its immunity from suit under the Rehabilitation Act, and in denying his ADA claim for prospective relief against the superintendent of the institution in his individual capacity. Koslow v. Commonwealth, Department of Corrections, CA3, No. 01- 2782, 8/ 21/ 02 ( http:// www. ca3. uscourts. gov/ opinarch/ 012782. txt).
FIRST CIRCUIT UPHOLDS TITLE II - The U. S. Court of Appeals for the First Circuit ( ME, PR, NH, MA, RI) in an August decision upheld the Title II of the ADA as proper Section 5 legislation, abrogating New Hampshire’s sovereign immunity to suit. The case involved a challenge to prison conditions in which the Court observed that the underlying ADA violation could also be a violation of the Eighth Amendment. The Court reserved judgement on those alleged ADA claims that were not also Constitutional violations. Kiman v. New Hampshire Department of Corrections, CA1, No. 02- 1099, 8/ 20/ 02 ( http:// caselaw. lp. findlaw. com/ scripts/ getcase. pl? navby= search& case=/ data2/ circs/ 1st/ 021099. html and http:// caselaw. lp. findlaw. com/ scripts/ getcase. pl? navby= search& case=/ data2/ circs/ 1st/ 021099v2. html).
DISABILITIES WEBSITE OF THE MONTH - The DWOTM takes a cultural turn this month. Artist Bill Miller has taken his art to the web, and hopes to do so in a bigger way. Despite having to adapt to chronic progressive Multiple Sclerosis, Bill has overcome almost total paralysis to continue producing works of art for over 30 years, and now has brought The ArtMiller Gallery online for his fans and fellow artists. Produced totally hands- free thanks to assistive technology, the site - and Miller’s art - “ promotes awareness of the life changing possibility of Assistive Technology and has over 100 images available for sale as prints or for use in fund- raising projects.” Http:// www. theartmiller. ab. ca/ bluewind
ADA News No. 108 - 12- February 15, 2003
COURT FINDS AMC STADIUM SEATING VIOLATES ACT - A federal district court in California has found that AMC Theatres with stadium- style seating violate the ADA because the front seats available for patrons who use wheelchairs inevitably segregate them in the least desirable sections of theaters. The court recognized that wheelchair users had begun complaining about the seating almost since the theaters opened, expressing their displeasure with sight lines and poor picture quality from front- row wheelchair- designated areas. In its opinion - which discusses at length the theaters, viewability and patron studies, and the law of accessibility - the court found that the law requires AMC to provide its wheelchair customers seating with viewing angles that are comparable to those offered the rest of the patrons. The court found additionally that in most of the AMC theaters studied, viewing angles are vastly dissimilar. A judge in New York state found Hoyts Theatres similarly in violation last August. USA v. AMC Entertainment, Inc., American Multi- Cinema, Inc., CDCalif., No. 99- 01034FMC, 11/ 20/ 02 ( http:// www. cacd. uscourts. gov/ CACD/ RecentPubOp. nsf/ bb61c530eab0911c882567cf005ac6f9/ edd7cd2d6d60a87288256c4d00803e58? OpenDocument& Highlight= 0, AMC).
AREA CALENDAR -
􀂉 Governmental Affairs Seminar: The New Congress: Facing Challenges, Creating Opportunities; March 9- 11, 2003; Mayflower Hotel, Washington, DC; sponsored by UCP; program includes information on the new 108th Congress and how the changes might impact disability programs; information and registration online at www. aucd. org/ aucd_ events. htm
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2003 AMCHP Annual Conference: Mobilizing to Eliminate Health Disparities; March 8- 12, 2003; Arlington, VA; sponsored by the Association of Maternal and Child Health Programs; conference will address causes and impact of health disparities on women, children and families, examining disparities related to age, gender, race, ethnicity, geography, citizenship, insurance access, socio- economic status and other factors influencing differentials in health access and health outcomes; information and registration online at http:// www. amchp1. org/ news/ 2003- meeting. htm, or contact Lori Whitehand at lwhitehand@ amchp. org.
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Changing Concepts of Health and Disability; March 17- 18, 2003; Hyatt Regency, Bethesda, MD; sponsored by Health and Wellness Consortium; conference examines innovative research and current trends in health and wellness for people with disabilities and identifies future directions in research, training and policy; information at http:// www. healthwellness. org.
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Shop For A Cause; April 5, 2003; Pittsburgh; proceeds benefit United Cerebral Palsy of Pittsburgh; Lazarus Department Stores participate in the Shop For A Cause fundraiser, ADA News No. 108 - 13- February 15, 2003
with special discounts, refreshments, special coupons, musical entertainment, fabulous prizes & exclusive shopping certificates; information and $ 5 tickets available from Marci Sloan at 412- 683- 7100 ext. 337, or msloan@ ucppittsburgh. org.
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America’s Mental Health Crisis: Finding Solutions Together; June 4- 7, 2003; Hyatt Regency Washington on Capitol Hill, Washington, DC; sponsored by National Mental Health Association; program will provide a forum for finding solutions to crisis in mental health care brought on by budget cuts, and exploring the value of partnerships and relationships; more information at http:// www. nmha. org/ annualconference/ index. cfm
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Disability and Dissent: Public Cultures, Public Spaces; June 12- 15, 2003; Bethesda Hyatt Hotel, Bethesda, MD; addresses themes concerning the status of disabled people at the beginning of the twenty- first century; more information at http:// www. disabilityworld. org/ conferences/ dissentconf. shtml, or contact Sharon Snyder at ssnyder@ uic. edu
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2003 Charity Golf Event; June 27, 2003; Greensburg Country Club, Greensburg, PA; benefits UCP Disabilities Foundation of Western PA, supporting programs and services for children, youth, and adults with all types of disabilities in Westmoreland, Indiana and Armstrong Counties; information at 724- 832- 8272, or e- mail ucp@ ucpwpa. org
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American Council of the Blind 42nd National Convention; July 5- 12, 2003; David L. Lawrence Convention Center, Pittsburgh, PA; conference information at http:// www. acb. org/ convention/ info2003. html, or contact Terry Pacheco at 202- 467- 5081 or tpacheco@ acb. org
ACCESSIBLE AMERICA FINALISTS NAMED - The National Organization on Disability has named seven U. S. communities as finalists in its second annual “ Accessible America Contest.” The award, which was given last year to the city of Venice, Florida, is made to the community that best recognizes and encourages comprehensive disability accessibility and opportunity. This year’s finalists are Austin, Texas; Bloomington, Indiana; Charlotte, North Carolina; Iowa City, Iowa; Irvine, California; Nashville, Tennessee; and Traverse City, Michigan. The NOD presents a cash award of $ 25,000 to the winning community to encourage further progress and to fund local disability- related efforts. The winner is scheduled to be announced on February 18th. Http:// www. nod. org/ cont/ dsp_ cont_ item_ view. cfm? viewType= itemView& contentId= 1312
WASHINGTON STATUTE ALLOWS HOSTILE WORK ENVIRONMENT CLAIM - The Supreme Court of Washington recently held that Washington’s Law Against Discrimination ( the state antidiscrimination statute) supports an employee’s disability- based hostile work environment claim. The court concluded that evidence of harassment by managers and employees following ADA News No. 108 - 14- February 15, 2003
a coworker’s workplace injury and resultant light duty assignment - including laughing at her, insulting her and implying that she had faked her injury - was sufficient to support a finding that the employer discriminated against the employee based upon the employee’s physical disability. Robel v. Roundup Corporation, WashSCt, No. 70561- 5, 12/ 12/ 02 ( http:// www. courts. wa. gov/ opinions/ opindisp. cfm? docid= 705615MAJ).
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. eeoc. gov/ publications. html, or by calling 1- 800- 514- 0301( V) or 1- 800- 514- 0383( TTY).
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The February edition of OVeRVIEW, the monthly magazine of the Office of Vocational Rehabilitation, features information about the OVR’s annual public meetings toward forming a Combined Agency State Plan, and a schedule of meetings bewteen March 31st and April 11th. Read the article at http:// www. dli. state. pa. us/ landi/ lib/ landi/ pdf/ ovr/ overview2- 14- 03. pdf.
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Five Steps to Choosing Assistive Technology ( AT) as an Accommodation, a publication of the Job Accommodation Network, is a three- page pamphlet that helps employers in determining what assistive technology ( AT) to provide as a job accommodation for an individual who is blind or visually impaired; available at http:// www. jan. wvu. edu/ media/ fivestepsfact. doc.
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The Pennsylvania Occupational Outlook Handbook is produced by the Pennsylvania Department of Labor and Industry, Center for Workforce Information and Analysis, to assist Pennsylvanians in making career decisions. It contains detailed occupational information for over 230 occupations, covering the majority of jobs in Pennsylvania. Find it online at http:// www. dli. state. pa. us/ landi/ cwp/ view. asp? a= 140& q= 190907. ( Many other publications about the Pennsylvania workforce are available on the DLI Workforce Information webpage at http:// www. dli. state. pa. us/ landi/ cwp/ view. asp? a= 140& Q= 58425& landiPNavCtr=|# 2363.)
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People with Disabilities Can’t Access the Web!, a paper by Michael Paciello ( described as one of the most articulate and experienced persons on the digital accessibility wave) focuses on the production of electronic documents for people with disabilities, identifying major problems in information and software design that deny access, citing successful products that can be used by people with disabilities to access publications, and pointing to resources that assist developers in creating accessible products in the future. Find this article at http:// www. scope. gmd. de/ info/ www6/ workshops/ wks003. html. Other valuable articles by ADA News No. 108 - 15- February 15, 2003
Michael Paciello and also available online are Introducing Web Accessibility; The Web and People with Disabilities: Cutting Edge Developments; Making the Web Accessible for the Deaf, Hearing and Mobility Impaired; Getting to Know the Disabilities Community; and Web Accessibility: 500 Million and Growing.
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The Well Being of Our Nation: An Inter- Generational Vision of Effective Mental Health Services and Supports is a report of the National Council on Disability that examines root causes of the crisis in mental health and seeks to “ connect the dots” concerning the dysfunction of a number of public systems that are charged with providing mental health services and supports for children, youth, adults and seniors who have been diagnosed with mental illnesses. Available at http:// www. ncd. gov/ newsroom/ publications/ mental health. html.
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Our ‘ STATE’ Policy: It Means “ Same- Time Availability To Everyone,” a sample policy for making print documents available in alternative formats to ensure access at training events, from the Rural Institute at the University of Montana, available online at http:// rtc. ruralinstitute. umt. edu/ state. htm
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Work At Home/ Telework as a Reasonable Accommodation is a new “ factsheet” from the EEOC for employers considering allowing an employee to telework as a reasonable accommodation under the ADA. The factsheet is available from the UCP website at http:// www. ucp. org/ ucp_ printdoc. cfm/ 1/ 17/ 104/ 104- 104/ 4360.
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The Winter 2003 edition of ADA In Focus, a quarterly publication of the ADA Information Center for the Mid- Atlantic region, is available online at http:// www. adainfo. org/ development/ winter03. html. Included is an excellent article, New Construction, Alterations, & Barrier Removal: Advancing Access. ( Many other ADA- related publications are also available from the Center’s Publications webpage at http:// www. adainfo. org/ publications.
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The Job Accommodation Network’s Consultant’s Corner this month is titled My Mom has Rheumatoid Arthritis; My Dad has Sleep Apnea. Can I Call JAN?
CONGRESS TO CONSIDER PAID FAMILY LEAVE BILLS Congressional leaders from both parties announced on February 5th, the 10th anniversary of the Family and Medical Leave Act’s signing, different proposals to encourage paid family leave. Senator Christopher Dodd, D- Conn., proposed a $ 400 million grant program to help states identify ways to fund six weeks of paid family and medical leave for private- sector employees such as California did last year through its disability insurance system. Representative Judy Biggert, R- Ill., called instead for legislation that would let non- salaried workers choose paid family leave as compensation for working overtime.
BUSINESS TAX INCENTIVES OVERLOOKED - Many private businesses are failing to take advantage of tax credits available to those who hire people with disabilities or make accessibility changes to their businesses, according to a report issued by the General Accounting Office. The report, titled Business Tax Incentives: Incentives to Employ Workers With Disabilities Receive Limited Use and Have an Uncertain Impact, discusses ways to increase the use of business tax credits. It can be found online on the GAO website at http:// www. gao. gov/ highlights/ d0339high. pdf.
BRIDGESTONE/ FIRESTONE SETTLES ACCESSIBILITY LAWSUIT - Bridgestone/ Firestone, which has certainly paid for its share of settlements over the past several years, has agreed to settle a disability rights lawsuit brought by a small group of activists in Pompano Beach, Florida. The settlement requires Bridgestone/ Firestone to hire experts to identify access problems in its stores nationwide, then fix the problems. The lawsuit accused Bridgestone/ Firestone with presenting customers with disabilities a variety of barriers in its stores, including narrow doorways, high counters, un- ramped entranceways, noncompliant door handles, inadequate athrooms and inaccessible parking.
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" News Reviews to Peruse"
Number 109 March 2003
Items regarding disabilities, disabilities law and the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. This is a free publication available in electronic and printed format to anyone who is interested. Subscription requests, 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). 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. 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.
MARCH IS DEAF HISTORY MONTH, AMERICAN DIABETES ALERT MONTH AND MENTAL RETARDATION AWARENESS MONTH - Find information at the iCan website ( http:// www. icanonline. net/ news/ fullpage. cfm? articleid= A4DDC8F2- 1985- 4F99- 84BE52A13579367C); at the American Diabetes Association website at http:// www. diabetes. org; and at the website of the Center for Mental Health Services ( http:// www. mentalhealth. org/ highlights/ March2003/ retardation/ default. asp).
SUPREME COURT WILL NOT DECIDE ADA CASE - In a stunning move, California Attorney General Bill Lockyer announced earlier this month that the State of California would withdraw its appeal of the decision of the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) in Medical Board of California v. Hason, USSCt No. 02- 479, cert. granted 11/ 18/ 02 ( http:// www. supremecourtus. gov/ docket/ 02- 479. htm). ( See previous story in ADA News No. 107, 1/ 17/ 03, http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ADA_ News_ 107/ ada_ news_ 107_ frontpage. htm). Arguments before the Supreme Court, scheduled for March 25, 2003, have been canceled by the Court. Advocates for the disabilities community as well as for California Governor Gray Davis feared that the High Court would use the case to further erode the protections of the Act with regard to state governments. “ This is a good day for the Americans with Disabilities Act,” Davis said in a prepared statement. “ The Supreme Court’s decision [ to cancel the scheduled argument] is another positive sign that we will succeed in preserving these core protections for men, women and children with disabilities.” The case began when Michael J. Hason sued the state in Los Angeles federal court under the disabilities act after the medical board refused to grant him a license to practice medicine, finding that he had a history of ADA News No. 109 - 18- March 18, 2003
depression and concluding he could not treat patients safely. If the Supreme Court agrees not to hear the case, the matter will return to U. S. District Court for trial or settlement. The decision of the Ninth Circuit Court of Appeals can be found at http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ 597EECBCC4409AE788256BE30080E9FE/$ file/ 0055784o. pdf? openelement
HIGH COURT WILL REVIEW TWO ADDITIONAL ADA CASES - The U. S. Supreme Court has accepted two more ADA case for review. The first, which presents the Court with the question whether companies that refuse to rehire former drug addicts can be sued under the ADA, involves a rehabilitated drug user who had lost his job as a technician working on missile systems after he tested positive for cocaine, then was denied reemployment based on an internal policy that the company does not hire back employees terminated for breaking misconduct rules. The U. S. Court of Appeals for the Ninth Circuit found the policy to be in violation of the Act because it discriminates against former, but not currently addicted, drug users. The second case accepted for review involves a former government building elevator operator whose job was eliminated and who then could not find another job she could do with her bad back, heart condition and other illnesses. The case from the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) tests whether a person for whom no meaningful work exists because of a disability is eligible for Social Security Income ( SSI) benefits. The cases below are Hernandez v. Hughes Missile Systems Company, CA9, No. 01- 15512, 8/ 12/ 02 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ B5CF2BD72D8B5EA288256C1300129746/$ file/ 0115512. pdf? openelement), and Thomas v. Commissioner of Social Security, CA3, No. 00- 3506, 8/ 16/ 02 ( http:// www. ca3. uscourts. gov/ opinarch/ 003506o. txt).
SUPREME COURT INTERESTED IN SIDEWALKS CASE - In September, I reported on a U. S. Court of Appeals for the Ninth Circuit decision in which that Court found the City of Sacramento ( CA) in violation of the ADA because it had failed to maintain its sidewalks in an accessible fashion. The U. S. Supreme Court has now asked for the views of the U. S. Department of Justice on the matter. Lawyers for the city have stated that the decision will place a “ staggering” financial burden on the city and others like it. The Justice Department brief is expected to be filed within the next few months.
ADA APPLIES IN CONTEXT OF POLICE ARREST - Ruling on an issue that has sharply divided federal courts, a Middle District of Pennsylvania judge held last month that the ADA covers police practices, including arrests, and that a police department can be sued for failing to train its officers to handle suspects with disabilities. “ Nothing in the statute, regulations, or legislative history suggests any exceptions to the Act for certain police activities,” wrote U. S. District Judge Yvette Kane. Judge Kane’s ruling allows an ADA claim to proceed in the civil rights suit brought by the parents of a mentally ill man who, in November 2000, was shot and ADA News No. 109 - 19- March 18, 2003
killed by police in a highly- publicized confrontation at his apartment in Lemoyne, a Harrisburg suburb, after he escaped from protective custody in an emergency psychiatric ward. Citing Yeskey v. Pennsylvania Department of Corrections, in which the U. S. Court of Appeals for the Third Circuit applied Title II of the Act to the “ programs and activities” of the state prison system, Judge Kane opined that the ADA terms were “ intended to be all- encompassing.” The ADA, she concluded, “ must be broadly construed to effectuate its purposes.” Schorr v. Borough of Lemoyne, USDC MDPa., No. 1: CV- 01- 930, 2/ 10/ 03 ( http:// www. pamd. uscourts. gov/ opinions/ kane/ 01v0930. pdf).
EEOC SUES MCDONALD’S FOR DISABILITY BIAS - The U. S. Equal Employment Opportunity Commission ( EEOC) has announced the filing of an employment discrimination lawsuit under the ADA against R. P. H. Management, Inc., doing business as McDonald’s restaurant in Northport, Alabama. The suit says that McDonald’s discriminated against an employee when it denied her the opportunity for promotion to a management position and constructively discharged her due to a cosmetic disfigurement known as Sturge Weber Syndrome. ( The employee has a " Port Wine Stain" covering a significant portion of her face.) The employee was removed from front counter service, a pre- requisite for the management position, because of her appearance. Http:// www. eeoc. gov/ press/ 3- 7- 03. html
EEOC SETTLES DISABILITY LAWSUIT WITH WASTE MANAGEMENT COMPANY - Agreeing to pay a penalty of $ 194,000, Browning- Ferris, Inc. settled an ADA suit brought by the EEOC on behalf of a Browning- Ferris employee with Crohn’s disease, an inflammatory bowel disease. The 10- year employee alleged that she had been fired by Browning- Ferris because of fear by her employer that her medical condition would be complicated by working in unsanitary conditions, even though she and her physicians stated that her condition was unaffected by her working environment. Http:// www. eeoc. gov/ press/ 3- 5- 03. html
DISABILITIES WEBSITE OF THE MONTH - This month, take a look at Diversity World. A cooperative project of Robert McInnes and Denise Bissonnette, two highly- regarded speakers and trainers on diversity issues and employment, the website has been offering information and assistance on age, disability, ethnicity, sexual and gender disability and more since April 2000 . A wonderful source of information for human resource professionals in the U. S. and Canada, the site contains links to numerous online diversity resources, job and training/ consulting postings. There is also an online store offering a variety of diversity resources for workforce professionals. The site is frequently updated and Bobby approved, and can be found at http:// www. DiversityWorld. com.
AREA CALENDAR -
ADA News No. 109 - 20- March 18, 2003
􀂉 Access to ADAAG; Level 1 ( Basic): April 8- 10, 2003; Level 2 ( Advanced): April 29 - May 1, 2003; Comfort Inn Conference CenterBowie, Maryland; Level 1 provides a foundation of understanding for newcomers, while Level 2 is for those with previous experience with issues of architectural accessibility; more information at 1- 800- 946- 9471 ( voice/ relay), or via e- mail to ADAdavidS@ aol. com
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NAGC Annual Conference; May 9- 12, 2003; Washington, DC; National Association of Governors’ Committees on People with Disabilities annual training conference; pre- registration and info at cbaird@ edd. ca. gov
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UCP 5K Corporate Run; May 19, 2003; West River Drive, Philadelphia; a team- oriented event sponsored by the Insurance Community for Continuing Education Awareness and UCP; info at 215- 242- 4200 or uccamaign@ aol. com, or at http:// www. ucpphila. org/ graphics/ pdf/ ucp_ regform. pdf
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DVI Celebrity Golf Tournament; June 23, 2003; North Hills Country Club, North Hills, PA; sponsored by DVI, Inc.; contact DVI’s Development Department at 215- 242- 4200 for information, or e- mail ucpcampaign@ aol. com
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Women With Disabilities and Allies Forum; October 17, 2003; Bethesda Hyatt Regency Hotel, Bethesda, Maryland; sponsored by the American Association of People with Disabilities ( AAPD) and National Organization for Women ( NOW); forum designed to foster discussion among women living with disabilities, disability rights activities, other feminists, and supportive allies from across the country; more info at http:// www. aapd- dc. org/ docs/ NOWforum. html
NO FEDERAL QUESTION JURISDICTION UNDER CALIFORNIA LAW - California plaintiffs’ attorneys breathed a sigh of relief last August when the U. S. Court of Appeals for the Ninth Circuit decided that, although the California Disabled Persons Act ( CDPA) makes any violation of the ADA also a violation of the state statute, this fact alone does not create federal question jurisdiction. “ Congress intended that there be no federal cause of action for damages for a violation of Title III of the ADA,” wrote Judge Barry Silverman, for the Court. “ To exercise federal- question jurisdiction in these circumstances would circumvent the intent of Congress. Federal question jurisdiction is not created merely because a violation of federal law is an element of a state law claim.” Wander v. Kaus, CA9, No. 01- 15116, 8/ 21/ 02 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ 352C263F4B787A2588256C1C0058179E/$ file/ 0115116. pdf? openelement).
UNREASONABLE ACCOMMODATION REQUEST PAVES WAY FOR CLAIM’S DISMISSAL - The U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) reversed a lower court’s ADA News No. 109 - 21- March 18, 2003
decision in favor of a county court employee who was fired for repeated absences taken because he experienced “ cluster headaches,” a rare often debilitating condition similar to migraine headaches. The trial court found that the employee’s request for an indefinite leave of absence was not unreasonable in light of his work history that involved several years of similar requests. The Appellate Court disagreed with this analysis, stating that the request for indefinite leave was unreasonable because the employee “ was not requesting an accommodation that allowed him to continue work in the present, but rather, in the future - at some indefinite time.” Because the employee was not capable of performing the essential functions of his job with or without a reasonable accommodation “ presently or in the immediate future,” the Court found he was not a qualified individual with a disability entitled to the ADA’s protections. Wood v. Green, CA11, No. 02- 12971, 3/ 13/ 03 ( http:// law. emory. edu/ caselaw/ 11ca/ mar2003/ 02- 12971. opn. html).
RESOURCES - Some disability/ employment- related resource material recently added to the catalogue. Publications from the Equal Employment Opportunity Commission ( EEOC) can be ordered at http:// www. eeoc. gov/ publications. html, or by calling 1- 800- 514- 0301( V) or 1- 800- 514- 0383( TTY).
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New materials from the EEOC: Addendum to the EEOC Title I Technical Assistance Manual; an updated version of Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA. Most EEOC publications are available directly from the agency’s webpage ( http:// www. eeoc. gov/ publications. html), and also from the ADA Technical Assistance Center at http:// www. adata. org/ pubs/ pubs- title1. html.
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The FCC Section 504 Programs & Activities Accessibility Handbook ( Section 504 Handbook) is a collection of guidelines, information, and procedures intended to ensure that the Commission is accessible to individuals with disabilities. The content of this handbook is designed to assist Commission personnel in their efforts to provide such accessibility. Http:// www. fcc. gov/ cgb/ dro/ 504/ 504_ handbook. pdf
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Pennsylvania Workforce 2008, from the Department of Labor and Industry, predicts the changes Pennsylvania will face in the makeup of its population and workforce, business mix of its economy, and jobs that will be in demand across the state. Http:// www. dli. state. pa. us/ landi/ cwp/ view. asp? a= 140& q= 197445
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The March edition of OVeRVIEW, the monthly magazine of the Office of Vocational Rehabilitation, features an article about a new web- based training tool, “ Web- Cognitive Disabilities Training”. Http:// www. dli. state. pa. us/ landi/ lib/ landi/ pdf/ ovr/ overview3- 14- 03. pdf
ADA News No. 109 - 22- March 18, 2003
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The National Council on Disability ( NCD) released several new documents in its series of policy briefs analyzing and responding to certain flawed aspects of the Americans with Disabilities Act ( ADA) decisions of the U. S. Supreme Court - Chevron v. Echazabal: The ADA’s ‘ Direct Threat to Self’ Defense; Reasonable Accommodation After Barnett; Negative Media Portrayals of the ADA; The Impact of the Supreme Court’s ADA Decisions on the Rights of Persons with Disabilities; Defining ‘ Disability’ in a Civil Rights Context: The Court’s Focus on Extent of Limitations as Opposed to Fair Treatment and Equal Opportunity; The Role of Mitigating Measures in the Narrowing of the ADA’s Coverage; and The Americans with Disabilities Act: The Implications of the Supreme Court’s ADA Decision in Board of Trustees of the University of Alabama v. Garrett. All of the above papers are available from the NCD at http:// www. ncd. gov/ newsroom/ publications/ 03publications. html.
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ADA Business Brief: Restriping Parking Lots and Readily Achievable Barrier Removal and Van- Accessible Parking, both available from the U. S. Department of Justice at http:// www. ada. gov/ business. htm
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Parking Technical Bulletin available from the U. S. Access Board at http:// www. access- board. gov/ indexes/ pubsindex. htm
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The ADA Quiz Book, published by the Rocky Mountain Disability and Business Technical Assistance Center contains puzzles, questions, quizzes and case studies on the ADA and accessible technology. The book can be ordered at http:// www. ada- infonet. org.
AAPD, MICROSOFT COOPERATE ON INTERN PROGRAM - The American Association of People with Disabilities ( AAPD) and Microsoft Corporation announced February 19th a unique summer internship program designed for college and university students with disabilities. This new Microsoft- AAPD Federal Internship Program is made possible through a $ 325,000 grant to AAPD from Microsoft and will be administered by AAPD. In its inaugural year, the program will provide ten students interested in careers in information technology with an eleven- week paid internship at a federal agency in Washington. The goal of the program is to give college students with disabilities the opportunity to participate in and benefit from highly sought- after federal internships to which other students have long had access. More information about the program is available at http:// www. microsoft. com/ giving/ Home. asp.
JUST- IN- TIME CURB RAMPS - Working to meet a court- ordered deadline imposed as a result of a 1999 lawsuit by several disabilities advocacy groups, Columbus, Ohio, completed installation of the last of over 10,000 new curb ramps on December 31st. A city spokeswoman described the $ 34 million project as “ very intense.” ADA News No. 109 - 23- March 18, 2003
GILLETTE MECHANIC WITH ADHD NOT DISABLED - A production mechanic at a Gillette facility who had a history of confrontations with supervisors and co- workers, and who had received treatment for Attention Deficit Hyperactivity Disorder ( ADHD) and depression, was terminated for “ unacceptable behavior.” A federal district trial court dismissed his ADA claim, finding that he had failed to prove he was a qualified person with a disability, and the U. S. Court of Appeals for the First Circuit ( ME, PR, NH, MA, RI) affirmed. The Appellate Court found that the mechanic had failed to show a substantial limitation on the major life activities of thinking or speaking, relying instead on a general diagnosis of ADHD. “ In the end,” wrote Circuit Judge Lynch, for the Court majority, the mechanic’s “ argument devolves into a claim that ADHD makes it more difficult for him to respond to stressful situations, that when he becomes angry, he sometimes loses control and can neither speak nor think well, and that this constituted a substantial limitation on a major life activity.” Senior Circuit Judge Bownes, in a very interesting dissent, disagreed with the majority’s application of the summary judgment standard and it’s analysis of the ADA and EEOC regulations. Calef v. The Gillette Company, CA1, No. 02- 1444, 3/ 11/ 03 ( http:// www. ca1. uscourts. gov/ cgi- bin/ getopn. pl? OPINION= 02- 1444.01A).
ACCESSIBLE WEB DESIGN FOR ‘ DUMMIES’ - “ Beginner Barrier- free Web Design” is an online course starting April 7th presented by Equal Access to Software and Information ( EASI), an online provider of accessible information technology for persons with disabilities. EASI specializes in making technical information easy to understand by people who are non- technical. EASI has found most of its Web design students know little technical HTML and that they use authoring tools like Dreamweaver, FrontPage or Netscape Composer to create Web pages. This course is designed to meet those needs. Find more information about EASI, this course, or register at http:// easi. cc/ workshops/ easiweb. htm.
MUSICIAN WAS INDEPENDENT CONTRACTOR FOR ADA PURPOSES - A Title I ADA claim by a member of the Minnesota Sinfonia was dismissed when the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) found that she was not an employee of the Sinfonia but an independent contractor. The Court found that Sinfonia members are “ free- lance” musicians paid on a per- concert basis, that the Sinfonia does not withhold income or FICA taxes from their pay, and does not provide annual leave, health or life insurance, worker’s compensation coverage or fringe benefits. “[ T] he Sinfonia’s professional musicians retained the discretion to perform elsewhere and accepted payments structured in a manner that confirmed their independent contractor status,” wrote Circuit Judge Loken for the Court. “ In such a case, we are loath to destroy the parties’ freedom to choose that form of relationship by deciding, after the fact, that they were required to contract as employer and employees, particularly when Congress remains free to extend Title VII and the ADA to this kind of independent contractor relationship if it determines that to be in the public interest.” Lerohl v. Friends of Minnesota Sinfonia, CA8, Nos. 02- 1433 & 02- 1443, 3/ 6/ 03 ( http:// www. ca8. uscourts. gov/ tmp/ 021433. html).
JOB DISCRIMINATION CLAIMS HIT 7- YEAR HIGH - Federal job discrimination complaints filed by workers against private employers jumped more than 4 percent in 2002 to the highest level in seven years. According to the EEOC, complaints increased to 84,442 during the 2002 budget year, up from 80,840 the previous year. Complaints in 2002 reached the highest level since 1995, when 87,529 complaints were filed. The poor economy, an aging and multinational work force and backlash from the 2001 terrorist attacks likely contributed to the increase, said EEOC Chairwoman Cari Dominguez. She noted large increases in allegations of religious, age and national origin discrimination. Religious complaints increased 21 percent, age complaints were up 14.5 percent and national origin complaints rise 13 percent. Allegations of race and gender discrimination accounted for a majority of the complaints, at 35 percent and 30 percent respectively. The industries generating the most complaints were retail, food services and anufacturing.
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" News Reviews to Peruse"
ADA News No. 109 - 24- March 18, 2003
ADA News No. 110 - 25- April 15, 2003
Number 110 April 2003
Items regarding disabilities, disabilities law and the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. This is a free publication available in electronic and printed format to anyone who is interested. Subscription requests, 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). 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. 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.
APRIL IS NATIONAL AUTISM AWARENESS MONTH - Visit the website of the Autism Society of America for more information about this disability. Http:// www. autism- society. org.
SECOND CIRCUIT DISMISSES SUBWAY CASE - Those of us familiar with case law under the ADA are used to courts interpreting the Act narrowly, thus putting seemingly deserving plaintiffs out of court. The statistics are sobering. Nationwide, fewer than 5% of employees prevail in Title I ADA cases. In the U. S. Court of Appeals for the Second Circuit ( NY, VT, CT), where fewer than 2% are successful, the ADA claim of a former subway worker for the New York City Transit Authority serves as only the latest example of how a court’s narrow interpretation of the law adversely affects employees. The worker was a Transit Authority relief clerk who was on her way to work in Brooklyn in 1995 when she learned that the worker she was to relieve had just been burned to death by would- be robbers, who had thrown gasoline into a subway car and set it on fire. Realizing that it could have been her, the clerk was traumatized by the incident. She was later diagnosed with post- traumatic stress syndrome characterized by feelings of apprehension and anxiety, insomnia and an inability to work in the subway. After a period of medical leave, she was returned to work by her doctors. Her doctors specified that she could do clerical or other work, but could no longer work underground. The Transit Authority refused to reassign her and she was fired when she refused to go underground. The clerk sued the Authority under the ADA for failing to accommodate her disability, but her claim was dismissed by a trial judge who failed to find a connection between the clerk’s disability and the requested accommodation. By a 2- 1 margin, the Appellate Court affirmed the dismissal. The Court found that, though her insomnia was a substantial limitation on a major life activity, and therefore a qualifying disability, the clerk had failed to prove that her insomnia was made worse by working in the subway, having told the Authority only that she was “ terrified of being alone and closed in.” In dissent, Judge Pierre Laval criticized the majority’s conclusion, stating that even the Authority’s physicians found that the clerk’s insomnia was aggravated by going underground. Felix v. New York City Transit Authority, CA2, No. 01- 7967, 3/ 31/ 03 ( http:// www. ca2. uscourts. gov: 81/ isysnative/ RDpcT3BpbnNcT1BOXDAxLTc5Njdfb3BuLnBkZg==/ 01- 7967_ opn. pdf# xml= http:// 10.213.23.111: 81/ isysquery/ irl36b3/ 1/ hilite). ADA News No. 110 - 26- April 15, 2003
HOMEWORK IS NOT AN OPTION - The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) affirmed that an employer’s refusal to grant a software engineer an accommodation to work exclusively from home did not violate the ADA. The employee requested an accommodation when she began experiencing numerous negative side effects from cancer treatment. The Court noted that “ a home office is rarely a reasonable accommodation” because “ most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” The Court continued by observing that the “ central components” of the employee’s job - “ monitoring contractors’ work, answering contractors’ questions as they arise, and ensuring that the contractors’ work does not interfere with the manufacturing process” - required her to be at the office. The Court also observed that the evidence indicated that the employee was capable of performing all of the essential functions of her position without an accommodation. Rauen v. United States Tobacco Manufacturing, L. P., CA7, No. 01- 3973, 2/ 10/ 03 ( http:// www. ca7. uscourts. gov/ op3. fwx? submit1= showop& caseno= 01- 3973. PDF).
CHRONIC PAIN IS NOT A DISABILITY - An operator of heavy industrial machine in a General Electric plant who took pain medication for the effects of chronic pancreatitis was not a person with a disability, and therefore his discharge did not violate the ADA, according to the U. S. Court of Appeals for the Fifth Circuit ( TX, LA, MS). The operator began taking “ central nervous system depressants” for the pain from his condition, medications which warn the user not to operate heavy machinery. When management discovered he was using the medication, he was either fired ( his story) or told that he could no longer work while using the medications. He did not return to work, and sued under the ADA. The Court affirmed the trial court’s dismissal. “ In enacting the ADA,” wrote Circuit Judge Smith, for the Court, “ Congress expressly estimated that ‘ some 43,000,000 Americans have one or more physical or mental disabilities’ … When one compares this estimate to the countless aches and pains from which most of us unhappily suffer, one can easily see that a lenient interpretation would expand the class of disabled persons far beyond Congress’ expectations.” Waldrip v. General Electric Company, CA5, No. 02- 30155, 4/ 1/ 03 ( http:// caselaw. lp. findlaw. com/ data2/ circs/ 5th/ 0230155p. pdf).
DISABILITIES WEBSITE OF THE MONTH - As we know, kids learn in all sorts of different ways, and at different rates. Diversity can tremendously enrich an educational experience. Unfortunately, a diversity in learning styles is often seen as a barrier to the learning experience. That is where All Kinds of Minds comes in. The All Kinds of Minds mission is to help those students who struggle with learning measurably improve their success in school and life by providing programs that integrate educational, scientific and clinical expertise. “ Simple labels such as ‘ LD’ and ‘ ADD’ may help to secure funding or some types of services for the diagnosed kid, but, unfortunately, they are inadequate in helping to pinpoint exactly where a student is experiencing a breakdown in learning,” states the organization’s Approach statement. “ Knowing that a child is ‘ ADD,’ does not address what’s going on when he tries to write a report, decode ADA News No. 110 - 27- April 15, 2003
written words, solve a math problem or attend to the details in a teacher’s presentation.” This website has sections especially designed for educators, families and for professional clinicians. Http:// www. allkindsofminds. org
AREA CALENDAR -
􀂉 MAXIMUS Ticket to Work; - Pittsburgh, April 24, 2003; Baltimore, May 6, 2003; conference designed to assist public and private sector managers, program and business developers, local policy- makers and administrators in understanding the impact of the Ticket to Work legislation; registration requested, contact 1- 866- 968- 7842 for information
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Festival of Good Living; Hanover, PA; April 25 & 26, 2003; UCP of South Central PA will receive a portion of the proceeds from this two- day event of exhibits, seminars, demonstrations and entertainment, sponsored by Hanover Hospital and other local businesses; Lori Burkholder ( WGAL- 8) will be featured keynote speaker on Saturday at 1 p. m.
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The ADA & Reasonable Accommodation in the Workplace ( On- line Course); May 5 - June 13, 2003; course offered by Rehabilitation Research & Training Center on Workplace Supports at Virginia Commonwealth University; conceptual framework of the ADA, Supreme Court rulings, preparing for and conducting job interviews, reasonable accommodations in the workplace, and management of injured workers; for more information, visit http:// www. worksupport. com or e- mail Teri Blankenship at tcblanke@ saturn. vcu. edu
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Practical Skills for Enhancing Your ADA Toolbox, Workshop Series; Dover, DE; 8: 30 a. m. - 12: 30 p. m.; Thursday, May 1: Introduction to Conflict Resolution; Thursday, May 22: Communication Skills to Generate Disability Awareness; Monday, June 2: Conflict Resolution & the ADA in the Workplace; workshops offered by the Delaware Statewide Coalition on the ADA ( SCADA); cost is $ 30 for each workshop, or $ 75 for all three; for more information or to register, call SCADA at 302- 292- 3066, or e- mail scada@ comcast. net
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15th Annual UCP Foundation Golf Classic; Lone Pine Golf Club, Washington, PA; June 02, 2003; golf on the beautiful 27- hole course followed by cocktails at 5: 30 with dinner and a program, hosted by Andrew Stockey, WTAE Action Sports anchor, to follow; individual golfers may enter for a $ 200 donation; Corporate Sponsors may enter a foursome and receive recognition with a corporate sign on the green, a flag at one of the holes, and recognition at dinner for a contribution of $ 1200; registration at 10: 30, lunch at ADA News No. 110 - 28- April 15, 2003
11: 00 and shotgun start at 12: 30; for more info, contact UCP of Southwestern PA at 724- 229- 0851, fax: 724- 229- 9252, or via e- mail to info@ ucpswpa. org.
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2003 National Mental Health Association Annual Conference; Hyatt Regency Hotel, Washington, D. C.; June 4- 7, 2003; conference program will provide a forum for finding solutions together for major budget problems brought on by deep cuts and shifting government priorities and exploring the value of partnerships and relationships; conference website is at http:// www. nmha. org/ annualconference/ index. cfm
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American Physical Therapy Association’s Annual Conference & Exposition; Washington, D. C.; June 18- 20, 2003; conference info at http:// www. apta. org.
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Annual MECA UCP Golf Tournament; Erie, PA; Monday, June 23, 2003; annual tournament to benefit children and adults with disabilities will take place at the Kahkwa Club again this year; for invitation and registration form, call Nancy at 836- 9113, ext. 223.
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Bridges To The Future!: The 2003 ASA National Conference on Autism; Westin Convention Center Hotel, Pittsburgh PA; July 16 - 20, 2003; conference website can be found at http:// www. autism- society. org/ site/ PageServer? pagename= 2003conference
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2003 HireDisability Expos; Philadelphia, PA; October 14, 2003; more information available from J. Klare at jklare@ equalitystaffing. com
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Pennsylvania’s Sixth Statewide Conference on Independent Living; Harrisburg Hilton and Towers, Harrisburg, PA; October 29 - November 1, 2003; learn about independent living, what efforts are being made to expand IL opportunities in your community, and what laws people with disabilities have to ensure their independence; contact Kristy Langbehn, Conference Coordinator, National Council on Independent Living, at 877- 525- 3400, or via e- mail to kristy@ ncil. org
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2003 Annual Meeting and Conference, Association of University Centers on Disabilities; Bethesda, MD; November 9- 12, 2003; more info at http:// www. aucd. org/ aucd_ events. htm
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Art Ability; Malvern, PA; November 11, 2003 - January 11, 2004; juried international exhibition and sale of art and fine crafts by artists with disabilities; info from Tina McGarrigle, Director of ART ABILITY, at 610- 251- 5607 or mcgarriglet@ mlhs. org.
CHILDREN BEYOND BORDERS EXHIBITION - Last year, children with disabilities from around the world were invited by VSA Arts to decorate identical 4- inch square boxes to ADA News No. 110 - 29- April 15, 2003
represent their hopes and dreams. The idea originated with the worldwide arts partnership developed by Women Beyond Borders. The collection was on display from January through March in Utah’s Art Access Gallery in Salt Lake City. Many of the very creative entries from 52 countries are displayed on the VSA website at http:// www. vsarts. org/ gallery/ exhibits/ cbborders/ index. html.
FEDERAL HHS MONEY MADE AVAILABLE TO STATES - U. S. Health and Human Services Secretary Tommy G. Thompson has announced $ 2.5 million in grants to five states - Indiana, Maryland, Mississippi, North Carolina and South Carolina - to help people with disabilities in those states become and stay competitively employed. Each of the states will receive $ 500,000 to support efforts to increase services and supports to workers, as well as help others return to work without the fear of losing health coverage. Including these grants, HHS has awarded more than $ 59 million to 40 states and the District of Columbia to expand their health coverage for disabled workers through the Medicaid program. The grants support the goals of the President Bush’s New Freedom Initiative, which is intended to eliminate barriers that unnecessarily hinder Americans with disabilities as they seek to participate fully in the life of their communities. “ Already through this initiative, nearly 30,000 disabled workers have returned to work without losing their health coverage, and the number of states offering expanded health care to these workers continues to grow,” Secretary Thompson said. “ We must continue to work together to create these kinds of opportunities for people with disabilities so we can fulfill President Bush’s promise to make life better for millions of Americans with disabilities who work.”
WHEELCHAIR USERS SOUGHT FOR SURVEY OF BUS RIDERS - The University of Pittsburgh is inviting public participation in an investigation of the real- world usage patterns of wheelchair transportation safety equipment on public buses. Study participants must meet the following requirements: be 18 years or older; sit in your wheelchair while riding public buses; have access to the Internet; and live in the United States of America. For more information about participation visit http:// www. wheelchairnet. org/ survey/ bus. html.
BUSINESSES SHOULD APPOINT ADA ADMINISTRATORS - Although there is no requirement in private business to appoint “ ADA Coordinators” as there is in public entities, disabilities rights groups believe it makes good business sense to do so. In a recent agreement between Family Dollar Stores and the Disability Rights Council of Greater Washington, D. C., Family Dollar agreed to appoint a permanent administrator to oversee the removal of barriers in stores such as boxes and turnstiles that are in the way of wheelchair users, persuade landlords of rented facilities to remove barriers and train staff.
RESOURCES - Some disability/ employment- related resource material recently added to the catalogue. Publications from the Equal Employment Opportunity Commission ( EEOC) can be ADA News No. 110 - 30- April 15, 2003
ordered at http:// www. eeoc. gov/ publications. html, or by calling 1- 800- 514- 0301( V) or 1- 800- 514- 0383( TTY).
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The April edition of OVeRVIEW, the monthly magazine of the Office of Vocational Rehabilitation, features information about Governor Ed Rendell’s Plan for a New Pennsylvania.
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The National Council on Disability ( NCD) has issued a new position paper calling on Congress to strengthen the ability of states to help families with disabilities on welfare transition from welfare to work. The paper, which summarizes research about people with disabilities and the Temporary Assistance for Needy Families ( TANF) program, is available at http:// www. ncd. gov/ newsroom/ publications/ familysupports. html.
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NCD’s paper, School Vouchers and Students with Disabilities addresses the applicability and/ or efficacy of extending publicly funded school voucher options to students with disabilities served under IDEA. This paper focuses on vouchers that allow public education funds to be used by eligible participants to attend private schools and the impact of such programs on the education of students with disabilities. Find it at Http:// www. ncd. gov/ newsroom/ publications/ vouchers. html.
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Business Benefits of Accessible Technology in the Workplace from Microsoft offers “ resources to help you discover the business value of integrating accessible technology into your organization’s technology plans, and learn about an effective 5- step implementation process.” Several articles and case studies are available at http:// www. microsoft. com/ enable/ business.
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Emergency Evacuation Preparedness Guide - The Center for Disability Issues and the Health Professions ( CDIHP) at Western University of Health Sciences in Pomona, California has a new 36- page guide to help people with disabilities be better prepared for large or small- scale emergencies. The Guide is available at no cost from http:// www. cdihp. org/ pdf/ finalv4brochure. pdf.
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The Pa. Department of Labor and Industry’s Career Guide contains wage and job outlook information for over 180 occupations, interest assessments, tips on how to market yourself, sources for financial aid, and contact information for Pennsylvania’s public schools, TeamPA CareerLink offices and selected state agencies. The Guide can be accessed and downloaded in its entirety from http:// www. dli. state. pa. us/ landi/ cwp/ view. asp? a= 140& Q= 187022.
ADA News No. 110 - 31- April 15, 2003
ADA NOTIFICATION ACT MAKES RETURN ENGAGEMENT - On April 7th, the National Council on Disability announced its opposition to a renewed effort to pass the ADA Notification Act ( H. R. 728), a bill designed to compel parties alleging that a business is inaccessible to provide written notice to the business about the specific ADA violation ninety days before bringing suit, and which will not allow for attorneys’ fees and costs. ( Go to http:// thomas. loc. gov, and enter HR728 in the Bill Number space.) This bill, sponsored by Representative Mark Foley ( R- Fla.), has been introduced a number of times in the past few House and Senate sessions, where it has met with stiff opposition by disabilities advocacy groups. See ADA News No. 91, 9/ 15/ 01, http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ada_ news_ 91_ frontpage. htm. For the NCD statement on the new bill, go to http:// www. ncd. gov/ newsroom/ news/ r03- 408. html.
SUPREME COURT TOSSES CALIFORNIA CASE - The U. S. Supreme Court made it official April 7th when it granted California’s request to withdraw its appeal in Medical Board of California v. Hason ( see ADA News No. 109, 3/ 18/ 01, http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ada_ news_ 90_ frontpage. htm).
IRVINE, CALIFORNIA RECOGNIZED BY NOD - The National Organization on Disability has selected the city of Irvine, California as its 2003 recipient of the Accessible America award for its successful design of programs, services and facilities accessible for citizens and visitors with disabilities. Located 40 miles south of Los Angeles, Irvine has a population of 143,000, more than 10 percent of whom have some type of disability, according to the U. S. Census. One of the nation’s largest planned urban communities, Irvine uses its ADA master plan to promote full access to schools, parks, religious institutions, recreational facilities and events for all residents, workers and visitors. The City’s Community Partners Emergency Response Team invites disability community involvement in brainstorming concerns and in preparing for emergencies. The Irvine Residents with Disabilities Advisory Board, chartered in 1990, responds to disability issues related to transportation, community awareness, employment, housing, accessibility and social/ recreational facilities. Irvine’s Access Reporting Policy forwards citizen complaints regarding community accessibility to the appropriate City department for swift investigation and resolution, culminating in a plan of action within two weeks. “ This is a particular series of programs that are near and dear to my heart,” said Irvine Mayor Agran. “ Our city has worked very, very hard and the benefits have accrued to tens of thousands of citizens with and without disabilities in our community.” Http:// www. nod. org/ content. cfm? id= 1353
STUDENT WITH DISABILITY SUES TO STAY IN DISABILITIES PROGRAM - A lawsuit alleging that Louisiana State University asked a student to leave its Computer Rehabilitation Program, saying the 38- year- old blind student was “ too disabled” for the program that teaches technological skills to disabled students, has been filed in U. S. District Court in Louisiana. “ It was an amazing shock, particularly since this is a program set up for the disabled,” said the ‘ A’ student ranked at the top of his class. “ This was just plain wrong.” His lawsuit seeks his permanent reinstatement to the program. The court has ordered his temporary reinstatement pending the outcome of the suit.
DOT, AMERICAN REACH SETTLEMENT - The U. S. Department of Transportation ( DOT) announced last month the issuance of an order reflecting a settlement with American Airlines regarding the carrier’s treatment of air travelers with disabilities. The order finds that American has violated the Air Carrier Access Act ( ACAA) and federal regulations regarding wheelchair service required to be provided to disabled air travelers. It also assesses a civil penalty of $ 1.2 million for these violations. “ The U. S. Department of Transportation is committed to increasing mobility for all Americans, particularly those with disabilities,” Secretary Mineta said. The department’s Aviation Enforcement Office launched an investigation of American’s compliance with the ACAA requirements regarding wheelchair service based on formal and informal complaints the department received.
THIRD CIRCUIT REVERSES ADA RETALIATION CLAIM - I know that managers are understanding people by nature, so most of you will sympathize with the managers in this case. It involves a customer service representative with Summit Bancorp in Bethlehem, Pennsylvania, who was diagnosed as having “ toxic encephalopathy," or hyper- sensitivity to common chemicals and fragrances in the workplace which caused allergy- like symptoms when she came in contact with them. The facts of this case, while interesting, are important to the decision only at the point where the employee filed an EEOC complaint against her employer alleging that the employer had refused to accommodate her. At that point, communications between employer and employee deteriorated and she was fired shortly thereafter. The employee sued, alleging that her firing was illegal disability- based discrimination, and was in retaliation for her engaging in protected activity, i. e., filing the EEOC complaint. The trial court granted summary judgment to the employer, and the employee appealed the decision on the retaliation claim, although not on the claim of disability itself. The U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) reversed on the retaliation claim, sending it back to the trial court for a new trial. The Appellate Court found that there was sufficient evidence of retaliation on the record so that a reasonable jury could find that retaliation in part motivated the employer’s action. Shellenberger v. Summit Bancorp, Inc., CA3, No. 01- 1215, 1/ 23/ 03 ( http:// www. ca3. uscourts. gov/ opinarch/ 011215. txt).
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" News Reviews to Peruse"
Number 111 May 2003
Items regarding disabilities, disabilities law and the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. This is a free publication available in electronic and printed format to anyone who is interested. Subscription requests, 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). 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. 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.
MAY IS NATIONAL MENTAL HEALTH AWARENESS MONTH, NATIONAL HIGH BLOOD PRESSURE EDUCATION MONTH AND NATIONAL STROKE AWARENESS MONTH
THIRD CIRCUIT DODGES ACCOMMODATION QUESTION - The U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) last September successfully avoided answering an ADA question that has split four other circuits - whether a plaintiff who claims he was “ regarded as disabled” has the right to sue over the denial of a reasonable accommodation. The Court found it unnecessary to answer the question since the plaintiff was rehired into the first available position that met his doctor’s limitations and in the Court’s opinion, the employer had therefore provided a reasonable accommodation. The case, first covered in ADA News No. 86, 4/ 15/ 01 ( http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ adanews_ 86/ ada_ news_ 86_ frontp ADA News No. 111 - 34- May 22, 2003
age. htm) involved a worker with a back impairment in a dispute with his employer over the conditions for his returning to work. Presented with the question whether the employer had denied the worker an accommodation to which he was entitled, even though he was a “ person with a disability” only in that the employer regarded him as such, the Court found that because the employer has reinstated the worker “ and no longer misperceives his medical condition, we see no need for any additional remedies.” Because the employer had accommodated the worker, whether or not it was required to by the ADA, there was no question in the Court’s mind to decide. Buskirk V. Apollo Metals, CA3, No. 01- 3556, 9/ 20/ 02 ( http:// www. ca3. uscourts. gov/ opinarch/ 013556. txt).
“ SMOKING- GUN” E- MAIL FORCES EMPLOYER INTO SETTLEMENT - An e- mail from a corporate executive discovered by the EEOC in the course of pre- litigation was enough to gain a trial for a salesman with bipolar disorder and eventually forced the employer to settle the claim. The salesman was hospitalized and did not go to work for over a month and was fired. The employer informed the EEOC that it was not aware why the salesman was absent; but the agency uncovered an executive e- mail that called for the salesman’s termination, stating “ we all have to take responsibility for our faults, sins and sickness.” The e- mail, coupled with the notice of termination that had been taped to the front door of the salesman’s home and which referred to the “ uncertainty of your situation” and “ this difficult time of your life,” moved the company to settle the claim. EEOC v. Voss, No. CIV- 02- 92- C, W. D. Okla. 2003.
STATE’S REMOVAL TO FEDERAL COURT WAIVES IMMUNITY - A state transportation department’s removal of an ADA case from state to federal court constituted a waiver of its sovereign immunity in that case, according to the U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, NM, KS, OK). The Court stressed that its holding is limited “ to the context of state- law claims, in respect to which the State has explicitly waived immunity from state- court proceedings.” Estes V. Wyoming Department of Transportation, CA10, No. 00- 8069, 9/ 05/ 02 ( http:// www. kscourts. org/ ca10/ cases/ 2002/ 09/ 00- 8069. htm).
EMPLOYERS MAY REQUIRE ARBITRATION AGREEMENTS - NINTH CIRCUIT - The U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) overturned one of its more controversial employment law decisions in recent years when it ruled last September that employers can compel workers to sign arbitration agreements as a condition of employment. In a decision one plaintiffs’ lawyer described as “ heartbreaking,” a divided panel ruled that a San Diego law firm did not violate the law when it rescinded an employment offer to a legal secretary because he refused to give up his right to sue for workplace discrimination because the refusal to sign was not a “ protected activity.” In reaching its conclusion, the Court cited the U. S. Supreme Court decision in Circuit City Stores, Inc. v. Adams as implicitly overturning a previous Ninth Circuit decision which held that employees cannot lose their jobs for refusing to agree to have their Title VII workplace discrimination claims settled by an ADA News No. 111 - 35- May 22, 2003
arbitrator. EEOC v. Luce, Forward, Hamilton & Scripps, CA9, No. 00- 57222, 9/ 3/ 02 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ E9C571F39150FF1B88256C290056416C/$ file/ 0057222. pdf? openelement).
DISABILITIES WEBSITE OF THE MONTH - Last month I spotlighted the Children Beyond Borders exhibit sponsored by Women Beyond Borders and VSA Arts. This month I recommend you take a look at the larger picture, the VSA arts website. Founded in 1974 by Jean Kennedy Smith as an affiliate of The John F. Kennedy Center for the Performing Arts, VSA arts ( which stands for “ Vision, Strength and Artistic Expression”) is an international organization that creates learning opportunities through the arts for people with disabilities. The organization offers arts- based programs in creative writing, dance, drama, music and the visual arts implemented primarily through its affiliate network in 39 states and the District of Columbia, collaborators in 10 states, and 70 international affiliates in 67 countries. VSA arts’ programs now serve 4.3 million Americans and 1.3 million people in other parts of the world. As one might expect, its website is a virtual mall of arts projects, exhibits, competitions and virtual galleries. Beautiful to look at and fascinating to read, the VSA arts website is one you’ll want to visit over and over. Http:// www. vsarts. org ( See more at Area Calendar.)
NFB RECOGNIZES ACCESSIBLE WEBSITES - The National Federation of the Blind ( NFB) announced the first national recipients of its Nonvisual Accessibility Web Application ( NVA) Certification. The first companies and national organizations to be recognized by the NFB for their efforts in the area of Web accessibility are HP, Wells Fargo & Company, and the U. S. Social Security Administration. Dr. Marc Maurer, President of NFB, said, “[ w] e created the certification process so that Internet accessibility leaders, such as these, could be publicly recognized by the NFB for their efforts. We hope that more companies and organizations will follow the example that these innovators have set and make Web accessibility a priority in their organizations.”
DOT UNVEILS NEW SERVICE ANIMAL GUIDELINES - On May 9, 2003, the Department of Transportation unveiled its new Guidance Concerning the Transportation of Service Animals in Air Transportation. The Guidance attempts to provides answers to the questions whether an animal is a service animal and its user a qualified individual with a disability; how to accommodate a qualified person with a disability with a service animal in the aircraft cabin; and when a service animal legally can be refused carriage in the cabin. Members of the assistance dog community were stunned by the DOT’s decision to classify untrained animals for emotional support as service animals despite contrary recommendations from the disabled community.
MONOCULAR VISION NOT A DISABILITY - The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) found that a temporary worker who had lost vision in his left eye could not show that he was a qualified individual with a disability under the ADA. The Court reasoned that since the ADA News No. 111 - 36- May 22, 2003
worker could not meet the employer’s vision standards and was unable to perform necessary functions of a temporary position, he was not qualified for the position. In addition, the Court drew attention to the fact that the worker had testified that his monocular vision was not substantially limiting of any major life activity. Dyke V. O’Neal Steel, Inc., CA7, No. 01- 2821, 5/ 5/ 03 ( http:// www. ca7. uscourts. gov/ op3. fwx? submit1= showop& caseno= 01- 2821. PDF).
AREA CALENDAR -
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Advanced Barrier- free Web Design; June 2 through June 30, 2003; EASI online course; instructor- led advanced- level course on web design; advanced features such as media, captioning, Java applets and other popular sophisticated tools will be addressed; registration and course syllabus at http:// easi. cc/ workshops/ advwbsyl. htm
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“ The Revolution of Empowerment: Lead On! Lead On!”; June 4 - 7, 2003; Washington, DC; annual conference of the National Council on Independent Living ( NCIL); for registration information, e- mail jen@ nataliepshear. com
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“ Putting People to Work”: Maryland Governor’s Committee on Employment of People with Disabilities Annual Conference; June 12, 2003; Martin’s West, Baltimore, MD; registration deadline is June 3; for more information, call the Committee office at 410- 333- 2263 ( V/ TTY), or 1- 800- 637- 4113 ( V/ TTY) or visit http:// www. mdtap. org/ news/ putting_ people_ 6_ 12_ 03. html
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17th Annual UCP Sports Auction; 10: 00 AM, June 14, 2003; Carousel Pavilion, RiverSide Stadium, Harrisburg; display of auction items at Strawberry Square on the first level; for more information call 717- 975- 0611 or browse to Harrisburg Senators Baseball for a complete list of auction items. Http:// www. senatorsbaseball. com/ releases/ 050903UCPAuction. html
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Workforce Innovations 2003; July 8 – 10, 2003; Marriott Wardman Park, Washington, D. C.; national conference for workforce investment leaders, decision- makers and change agents explores links between workforce investment and economic development; for more information, visit http:// www. workforceinnovations. org
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" Extraordinary Art, Exceptional Artists"; July 10- August 2, 2003; The Art Center School and Galleries, Mechanicsburg, PA; exhibition highlights talent of artists with disabilities; public is invited to attend free reception Thursday, July 10th, from 6 to 8 PM, gallery hours are Monday thru Friday 10 AM to 4 PM, Saturday 10 AM to 2 PM; more info and directions at http:// www. serve. com/ artcenter/
ADA News No. 111 - 37- May 22, 2003
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Physical Disabilities Through the Lifespan; July 21 - 22, 2003; National Institutes of Health, Bethesda, MD; goal of conference is to set a research agenda to identify gaps in scientific knowledge about the problems of aging with a disability and to inform public policy on related issues; for more information, visit http:// physicaldisabilities. iqsolutions. com
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Strategies and Partners in Employment: The Biennial Pittsburgh Employment Conference; August 08- 10, 2003; Pittsburgh, PA; successful strategies for employment as well as likely partners will be divided into groups, panels composed of augmented communicators who have used a particular strategy will discuss that strategy and introduce the partners who collaborated with them to achieve their goals; for registration information, please contact shout@ sgi. net or telephone/ fax 1- 800- 668- 4202
􀂉 “ Work Site Accommodations: A Symposium for Employers;” September 22- 23, 2003; Rosslyn, Virginia; sponsored by the Job Accommodation Network; symposium by JAN consultants for managers, trainers, and other HR professionals; info and agenda at http:// symposium. jan. wvu. edu/ Symposium. htm
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International VSA Arts Festival; June 9- 12, 2004; facilities throughout Washington, DC; participants and visitors can meet, interact with, and view works of artists with disabilities; application deadline is May 30th, 2003, see conference website at http:// www. vsartsfestival. org
HOSPITALIZED TEACHER NOT REGARDED AS HAVING DISABILITY - The U. S. Court of Appeals for the Second Circuit ( NY, VT, CT) handed down an interesting decision this month in an appeal from the dismissal of a case brought by a probationary grade- school teacher. The teacher, who had a history of bipolar syndrome apparently unknown by anyone in the administration of the school that hired her in September 2000, admitted herself to a psychiatric hospital in November of that year. She contacted her district superintendent and informed him that she had admitted herself, later informing him that she would be able to return to work in January 2001. Around this time, the superintendent decided to recommend that the teacher’s contract not be renewed. After leaving the hospital, the teacher offered to finish the year, but was asked to submit to a psychiatric evaluation, which she refused. Her lawsuit alleging discrimination on the basis of disability and discriminatory regard was dismissed by the trial court and appealed. The Appellate Court affirmed. The Court reasoned that regardless what the district had learned about the teacher’s psychiatric condition after the superintendent had recommended her removal, the “ regarded as” prong of her claim could only consider what he knew at the time, that she had admitted herself to a psychiatric hospital. The Court found that fact alone insufficient to establish her claim, as his “ admitted concerns about whether [ the teacher] was able to return to work do not address his perception of her ability to perform a ADA News No. 111 - 38- May 22, 2003
broader range of jobs.” Doe v. Board of Education of Fallsburgh Central School District, CA2, No. 92- 9245, 5/ 15/ 03 ( http:// www. ca2. uscourts. gov: 81/ isysquery/ irld818/ 31/ doc).
UNIVERSITY IMMUNE FROM ADMINISTRATOR’S REHAB ACT CLAIM - A state- run university is entitled to sovereign immunity from an administrator’s Rehabilitation Act claim, according to the U. S. Court of Appeals for the Fifth Circuit ( TX, LA, MS), and the university did not knowingly waive that immunity through receipt of federal funds. The university moved to dismiss the administrator’s lawsuit, even though admitting that she had a disability as defined in the Act and that it was a recipient of federal funds. The school argued “ that it did not knowingly waive its sovereign immunity by accepting federal funds from 1998 to 2000, because it reasonably believed that Congress already had abrogated its immunity” under the Act. Miller v. Texas Tech University Health Sciences Center, CA5, No. 02- 10190, 05/ 13/ 03 ( http:// caselaw. lp. findlaw. com/ data2/ circs/ 5th/ 0210190p. pdf).
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. eeoc. gov/ publications. html, or by calling 1- 800- 514- 0301( V) or 1- 800- 514- 0383( TTY).
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The May edition of OVeRVIEW, the monthly magazine of the Office of Vocational Rehabilitation, features an article about John Schroeder, a customer whom OVR got back to work after he lost his hearing. http:// www. dli. state. pa. us/ landi/ lib/ landi/ pdf/ ovr/ overview5- 15- 03. pdf
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TANF and Disability: Importance of Supports for Families with Disabilities in Welfare Reform is a new publication from the National Council on Disability calling on Congress to strengthen the ability of families with disabilities to transition from welfare to work. Http:// www. ncd. gov/ newsroom/ publications/ familysupports. html
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Four new NCD policy briefs have been added to the series analyzing the Supreme Court decisions on the ADA. Readers can find The Supreme Court’s ADA Decisions and Per Se Disabilities; The Role of Mitigating Measures; Reasonable Accommodation After Barnett; and The Supreme Court’s ADA Decisions Regarding Substantial Limitation of Major Life Activities at the NCD website, http:// www. ncd. gov/ newsroom/ publications/ 03publications. html.
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April Showers Bring May Flowers … and Seasonal Allergies, Too, this month’s article in the Job Accommodation Network’s Consultants’ Corner, addresses those allergy sufferers who may be substantially impacted by their reactions to seasonal allergens and ideas for employers who want to accommodate them. ADA News No. 111 - 39- May 22, 2003
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Beyond 50.03: A Report to the Nation on Independent Living and Disability takes an in- depth look at the roles of supportive services, family and community, and our environments in enhancing the independence of older persons with disabilities. Http:// research. aarp. org/ il/ beyond_ 50_ il. html
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Enforcing the ADA: A Status Report from the Department of Justice covers the ADA activities of the Department of Justice during the fourth quarter ( October - December) of 2002. Http:// www. usdoj. gov/ crt/ ada/ octdec02. htm
MICROSOFT CASE STUDY VIDEOS ON CAREERS AND ACCESSIBLE TECHNOLOGY - Microsoft has introduced newly- posted video case studies on working and accessible technology on its website. Microsoft Chairman Bill Gates introduces the short videos, stating: " Creating technology that can work for everyone - including people with disabilities - helps businesses attract and retain the best employees from the widest possible pool of talent and keeps productivity high." The videos feature six professionals with disabilities pursuing careers in business and government using a wide range of accessible technology. Available at Microsoft Accessibility, each video is provided with audio description and captioning. Http:// www. microsoft. com/ enable/ casestudy/ videos. aspx
FREE & LOW COST MEDICAL TRANSPORT SERVICES - The National UCP has posted a new service, Free & Low Cost Medical Transport Services A- Z, that lists organizations and providers who will provide transportation for medical purposes at low or no cost. Http:// www. ucp. org/ ucp_ channeldoc. cfm/ 1/ 19/ 119/ 119- 119/ 4611
LAID- OFF WORKERS SWELLING THE COST OF DISABILITY PAY - The millions of low- skilled workers turning to Social Security disability pay as refuge from layoffs in recent years pushed benefits costs to $ 60 billion last year, the federal government’s biggest income- support program. The number of recipients has risen to 5.42 million from 3 million in 1990. Most of those qualifying for the benefits, part of the Social Security system, never got past high school and held jobs like factory worker, waitress, store clerk, laborer or health care aide.
COLLEGE’S ACCOMMODATION OF STUDENT ADEQUATE UNDER LAW - Efforts made by Lewis and Clark College to accommodate a student who utilized a wheelchair in a field- based overseas summer program were sufficient to satisfy the requirements of Title III of the ADA, even though the student was unable to participate equally in all of the program’s activities. The student, who applied for the overseas program, worked with the school to assure herself access prior to the program’s beginning. Nevertheless, “[ n] ot every aspect of the program conformed to her requirements … At some 22 locations, [ she] did not have full wheelchair access.” The student did participate in enough of the program’s activities, however, to receive passing ADA News No. 111 - 40- May 22, 2003
grades, and received full credit for the course. After the program ended, the student sued the college, alleging among other charges that the college had failed to accommodate her as required by the Rehabilitation Act and Title III of the ADA by providing wheelchair access during the course of the program. A federal jury found against the student and she appealed. The U. S. Court of Appeals for the Ninth Circuit affirmed, on the disabilities claims finding that the pertinent question was not whether the college had failed to provide wheelchair access on several occasions. “[ T] he central inquiry is whether the program, ‘ when viewed in its entirety, is readily accessible to and usable by individuals with disabilities,’” wrote Judge Alfred T. Goodwin for the Court. The Court found that the college had amply accommodated the student’s disability, and that she had enjoyed many of the benefits of the program. “ The College did not necessarily fail to make reasonable modifications simply because some aspects of the program did not conform to [ the student’s] expectations,” stated Judge Goodwin. Bird v. Lewis & Clark College, CA9, Nos. 00- 35912 & 00- 35944, 9/ 3/ 02 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ 792C8DE1170AE3A388256C2900562028/$ file/ 0035912. pdf? openelement).
COUNTY POLICEMAN CITED FOR ADA VIOLATION - A Victoria County, Texas police officer violated the protected rights of a deaf motorist when he administered field sobriety tests and found the motorist to be legally impaired without adequately communicating with the motorist during the tests. The officer, investigating a report that a motorist at the scene of an accident was “ incoherent”, was informed by the motorist in question that he had a hearing disability. Nevertheless, the officer proceeded to administer three field sobriety tests without inquiring of the motorist what mode of communication would work best for him. In the opinion of the officer, the motorist failed the tests, apparently due to misunderstanding the directions he was given by the officer. The motorist was arrested and taken to the police station, where he was later released following the negative results of a blood alcohol test. The motorist sued the county alleging that his rights under the Rehabilitation Act and Title II of the ADA had been violated. The trial jury found in favor of the motorist and the county appealed. The U. S. Court of Appeals for the Fifth Circuit affirmed the lower court’s decision. “ The ADA expressly provides that a disabled person is discriminated against when an entity fails to ‘ take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services,’” wrote Circuit Judge Carl E. Stewart for the Court. “ A plain reading of the ADA evidences that Congress intended to impose an affirmative duty on public entities to create policies or procedures to prevent discrimination based on disability.” Delano- Pyle v. Victoria County, Texas, CA5, No. 00- 41038, 9/ 3/ 02 ( http:// www. ca5. uscourts. gov/ opinions/ pub/ 00/ 00- 41038- cv0. pdf).
MOORESTOWN, NJ VALEDICTORIAN SUES TO MAINTAIN HONOR - A small firestorm erupted earlier this month in the town of Moorestown, New Jersey, when the Moorestown school district attempted to change the standards for its high school valedictorian to avoid naming a student with chronic fatigue syndrome as sole valedictorian. The student had met the school board’s standard for class valedictorian by finishing with her class’s highest grade point average. Some classmates and their parents, however, though that she had an unfair advantage in the competition because she had earned some of her credits at home when the CFS made it difficult for her to attend classes. The school had approved the accommodation, but nevertheless had initiated eleventh- hour changes to the criteria that would have resulted in her sharing the honor with two other students. The student sued the district to stop the changes and in a May 8th trial, U. S. District Judge Freda Wolfson upbraided school district representatives for making a de facto attempt to discriminate against the student on the basis of her disability. The board may not grant an accommodation designed to allow a student to compete on an equal footing with other students, then turn around and decide that the accommodation gave her an unfair advantage, the judge stated. See contrasting views of this situation at http:// www. southjerseynews. com/ issues/ may/ m050903c. htm and http:// www. philly. com/ mld/ philly/ 5893452. htm.
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ADA News No. 112 - 41- June 16, 2003
ADA News No. 112 - 42- June 16, 2003
" News Reviews to Peruse"
Number 112 June 2003
Items regarding disabilities, disabilities law and the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. This is a free publication available in electronic and printed format to anyone who is interested. Subscription requests, 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). 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. 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 DEFINES “ EMPLOYEE” - The U. S. Supreme Court handed down a decision April 22nd in Clackamas Gastroenterology Associates, P. C. v. Wells, a case reported in ADA News No. 104, 10/ 15/ 02 ( http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ada_ news_ 104/ ada_ news_ 104_ frontpage. htm). The employer in this Title I ADA lawsuit had moved for summary judgment, asserting that it was not covered by the Act because it did not have 15 or more employees for the 20 weeks required by the ADA. That assertion’s accuracy depended on whether the four physician- shareholders who own the professional corporation and constitute its board of directors are counted as employees. The District Court concluded that the physicians were more analogous to partners in a partnership than to shareholders in a corporation and therefore were not employees under the ADA, but the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) reversed, finding no reason to permit a professional corporation to reap the tax and civil liability advantages of its corporate status and then argue that it is like a partnership so as to avoid employment discrimination liability. The Supreme Court reversed the Appellate Court, but remanded the case for further findings. The Court stated that the common- law element of control is the principal guidepost to be followed in deciding whether the four director- shareholder physicians should be counted as “ employees.” In the Court’s opinion the District Court’s findings appeared to weigh in favor of concluding that the four physicians are not clinic employees, but remanded because evidence in the record may contradict those findings or support a contrary conclusion. Clackamas Gastroenterology Associates., P. C. v. Wells, USSCt. No. 01- 1435, 04/ 22/ 03 ( http:// www. supremecourtus. gov/ opinions/ 02pdf/ 01- 1435. pdf).
COURT OKAYS FMLA SUITS AGAINST STATES - State employees can sue in federal court to enforce their rights under the Family and Medical Leave Act ( FMLA), the U. S. Supreme Court ruled 6- 3 on May 27th. The decision is a departure from the Court’s recent line of cases expanding states’ rights at the expense of federal power. The majority decided that Congress had the authority to mandate that state employees be given the same benefit private sector workers have under the FMLA. The case was brought by a Nevada Department of Human ADA News No. 112 - 43- June 16, 2003
Resources employee who was fired after taking FMLA leave to care for his ailing wife. ( See ADA News No. 103, 9/ 15/ 02, http:// www. dep. state. pa. us/ dep/ deputate/ ChiefCounsel/ ADA/ ada_ news_ 103/ ada_ news_ 103_ frontpage. htm.) Nevada insisted the employee could not sue the state in federal court without its consent, the same argument used to win earlier cases by other states under the Age Discrimination in Employment Act and the ADA. The Supreme Court, however, found ample evidence of past discrimination against both men and women in employment when family responsibilities conflicted with work. The Court decided that Congress had sufficient reason for overriding states’ 11th Amendment immunity in this instance. Nevada Department of Human Resources v. Hibbs, USSCt. No. 01- 1368, 5/ 27/ 03 ( http:// www. supremecourtus. gov/ opinions/ 02pdf/ 01- 1368. pdf).
TENNESSEE ASKS SUPREME COURT TO REVIEW TITLE II IMMUNITY - The State of Tennessee has asked the Supreme Court to declare that it has immunity from claims brought under Title II of the ADA by two of its citizens. The U. S. Solicitor General has filed a brief defending Title II, but agreeing that the Supreme Court should hear the case because the issue is important and the lower courts are divided on it. One plaintiff in the case has paraplegia and uses a wheelchair. In 1996, the State charged him with two misdemeanor offenses and at his first appearance, he crawled up two flights of stairs to get to the courtroom at the Polk County Courthouse in Benton, Tennessee. All court proceedings in that courthouse take place on the second floor, and at the time, the building had no elevator. At his later appearance dates, the plaintiff refused to crawl up the steps again, also refusing to be carried, and was arrested and jailed. In all further proceedings, the plaintiff was left on the ground floor of the courthouse while his counsel shuttled back and forth between him and the second- floor courtroom. Additional proceedings were held on the ground floor of the courthouse in locations that were not open to the public. The trial court subsequently entered an order holding the remainder of the criminal proceedings in abeyance pending the construction of an elevator at the courthouse. A second plaintiff also has paraplegia and uses a wheelchair to ambulate. She is a certified court reporter in Tennessee, and her inability to access numerous state court proceedings due to the inaccessibility of the courthouses limits her ability to attract clients and to offer, provide, and complete services for her clients. The U. S. Court of Appeals for the Sixth Circuit ( MI, OH, KY, TN) reversed a trial court dismissal, ordering that a trial be held over the state’s objections that it was immune. Lane v. Tennessee, USSCt No. 02- 1667, docket at http:// www. supremecourtus. gov/ docket/ 02- 1667. htm; the opinion of the Appellate Court is at http:// pacer. ca6. uscourts. gov/ cgi- bin/ getopn. pl? OPINION= 03a0010a. 06.
ACCESSIBLE VOTING GETS BIG FINANCIAL BOOST FROM FEDS - U. S. Health and Human Services Secretary Tommy Thompson has announced the availability of $ 13 million in grants for states and territories intended to establish, expand and improve access to voting areas and increase voter participation by individuals with disabilities. The grants will be used by ADA News No. 112 - 44- June 16, 2003
states in collaboration with local governments to enhance accessibility to polling places for individuals with disabilities; to provide outreach to the disability community about polling accessibility; and to train poll workers, elections officials and volunteers on methods to promote access and increase voter participation for individuals with disabilities. Several states are currently defending ADA lawsuits brought to challenge inaccessible voting procedures.
NCD FINDS LAX ENFORCEMENT OF REHAB ACT - In a recently released report, the National Council on Disability ( NCD) found that five federal agencies responsible for enforcement of disability rights provided by Section 504 of the Rehabilitation Act - the Departments of Education, Health and Human Services, Justice, Labor, and State - have given the task low priority and minimal leadership. Section 504 of the 1973 Rehabilitation Act is acknowledged as the first national civil rights law to view the exclusion and segregation of people with disabilities as discrimination. “ Section 504 is a powerful enfranchisement tool for people with disabilities if used with due diligence,” said NCD chairperson Lex Frieden, “ but that has not been the case. Although a number of these issues are now being addressed by some of the agencies, more needs to be done.” NCD’s report, Rehabilitating Section 504, can be found online at http:// www. ncd. gov/ newsroom/ publications/ section504. html.
EUROPE OBSERVES YEAR OF PEOPLE WITH DISABILITIES 2003 - The largest campaign in European history to raise awareness around the rights of people with disabilities is being organized by the European Commission in collabo