ADA news news reviews to peruse.

              ADA News No. 131 - 1- January 21, 2005
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" News Reviews to Peruse"
Number 131 January 2005
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.
HOW TO ‘ HELP’ WITHOUT RAISING PERCEPTION? - You have an older employee who is in declining health. Although you don’t know or care if the employee has a disability, you naturally - being a caring employer - do things to help the employee perform, like buying a more comfortable chair, or looking the other way when the employee arrives late for work, or ADA News No. 131 - 2- January 21, 2005
arranging for others to cover for the employee when necessary. How surprised are you, then, when the employee quits after being told her contract might be terminated, and subsequently sues you, claiming discrimination on the basis of discriminatory regard? That is just what happened to a Wisconsin school district. The employee, a 30- year physical education teacher, argued that her “ retirement was forced on her by the school district’s failure to accommodate her ailments — arthritis, bursitis, degenerating spinal discs, scoliosis, and spondylitis.” While the teacher all but admitted that she did not have a disability, she insisted “ because the district made some efforts at accommodation, it must have regarded her that way.” The U. S. Court of Appeals for the Seventh Circuit ( OH, IN, WI) in this case agreed with the trial court that the teacher had failed to present evidence sufficient to allow a reasonable trier of fact to conclude that she had been regarded as having a disability, and affirmed the dismissal. In a delightful opinion, however, the Court included a discussion of “ regarded as” claims, and the possibility of accommodating the “ regarded as” employee. A good read. Cigan v. Chippewa Falls School District, CA7, No. 03- 4034, 11/ 5/ 04 ( http:// www. ca7. uscourts. gov/ op3. fwx? submit1= showop& caseno= 03- 4034. PDF).
JUST ANOTHER FAILURE TO PROVE ‘ WORKING’ LIMITATION - This has become routine by now; but the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, MN, NE, IA, MO, AK) this month granted a defendant’s appeal of the denial of judgment NOV and remanded the case back to the trial court with directions to find for the defendant because the Court found that the plaintiff had failed to prove a substantial limitation in “ working.” The employee was a former boiler operator at a bean processing plant, a job that required physical labor. Because of changes in the job making it more rigorous, and a deteriorating physical condition ( shoulder and back surgery, a hernia flare- up, etc.), the employee was placed on work restrictions by his physician and was reassigned by the employer to perform a series of menial odd jobs. A second examination directed by the employer confirmed the recommendation of the first. Finally, upon returning from a leave of absence, the employee was fired allegedly for “ surreptitiously” videotaping in the plant, which was against company regulations. He sued under the ADA, claiming that he had actually been fired because the company regarded him as disabled. At trial, a jury found in his favor, and the trial judge denied the company’s motion to overturn the jury verdict. On appeal however, the Circuit Court reversed, finding insufficient evidence that the employee was regarded as substantially limited in his ability to work “ in a broad class of jobs.” “[ A} person’s inability to perform ‘ one particular job’ is not a substantial limitation on the major life activity of working,” wrote Circuit Judge Colloton for the Court, “[ A] nd [ ] ‘ working does not mean working at a particular job of the person’s choice.’ … A reasonable jury could not have concluded, based on the evidence presented in this case, that [ the employer regarded the employee] as unable to perform a broad class of jobs when it removed him from the position of boiler operator and assigned him to other work in the plant.” Knutson v. Ag Processing, Inc., CA 8, No. 03- 3176, 1/ 12/ 05 ( http:// caselaw. lp. findlaw. com/ data2/ circs/ 8th/ 033176p. pdf).
ADA News No. 131 - 3- January 21, 2005
DISABILITIES WEBSITE OF THE MONTH - NewMobility. com is the Web site for New Mobility Magazine and a leading online resource for Disability Culture and Lifestyle. Newmobility. com is a tremendous research and communication tool for anyone with an interest in disability issues. The heart of the site is New Mobility Magazine, but you will also find a bookstore, calendar and message boards. Http:// www. NewMobility. com
THINK YOU ARE ALLERGIC TO WORK? - If you are a highly suggestible person, you may want to skip this case. It involves a budget analyst in the District of Columbia’s Department of Budget and Planning (“ DBP”). After working there for twelve years, he developed a “ severe medical condition, which seemed to be exacerbated by the work environment” at the DBP’s offices in Washington, DC. The analyst described his condition as “ a sense of insects crawling on my skin causing severe irritation, occurring shortly after I arrive at work.” The irritation often lasted long after he left the building and cause him to lose sleep even at home. A physician diagnosed the analyst as “ a most allergic individual,” stating that he suffered from “ idiopathic pruritis” made worse by his work environment. As the condition worsened and affected his sleep, his attendance deteriorated, and he was counseled. In a memorandum appended to a performance evaluation, the analyst stated: “ I have acquired an allergic reaction to something that lives within this building … I believe that the cause of my distress … is to be found living and flourishing within the confines of this workplace.” As his attendance worsened, and following a change in administration, the analyst was fired. He sued the District, alleging violations of the ADA by a failure to accommodate his alleged disability, and that he was fired because of his alleged disability. The trial court granted summary judgment to the District on all of his claims, concluding that the analyst had failed to raise a genuine issue that “ the extent of his sleeping limitation [ was] substantial within the meaning of the ADA.” On appeal, the U. S. Court of Appeals for the District of Columbia Circuit affirmed. The Court rejected, however, the lower court’s finding that his claim failed because he had failed to offer expert medical testimony regarding the impact of his condition on his ability to sleep, stating that a plaintiff’s own subjective description could be substantial evidence. The Court did find that the analyst’s failure to offer evidence of the allergic reaction affecting his sleep occurring anywhere other than his worksite was fatal to his claim. If he “ could have avoided the itching that seriously affected his sleep simply by working at a different location, then he was not ‘ substantially limited’ in the major life activity of sleeping,” wrote Circuit Judge Garland for the Court. An interesting read - if you can bear it. Haynes v. Williams, CA DC, No. 03- 7134, 12/ 17/ 04 ( http:// caselaw. lp. findlaw. com/ data2/ circs/ dc/ 037134a. pdf).
EMERGENCY EVACUATIONS - Imagine yourself in the following situation: There you are, shopping at a store in a local mall, when the mall fire alarms start shrieking. While everyone else in the store heads for the exits, you are escorted by store personnel to a different door. You are pushed through the door into an access hallway and the door is closed - locked - behind you. While the din from the alarms continues, you look around and realize that there is no way out of ADA News No. 131 - 4- January 21, 2005
the hallway except back through the now locked store door. In a panic yet? Well, this is what happened to a plaintiff in a recent Maryland ADA case, a woman who is confined to a wheelchair and who was unceremoniously shoved by employees of a Silver Spring Marshalls out of the store and into a below- ground- level area of the mall accessible - due to the emergency alarms, which had disabled all of the elevators - only by stairs. There she was forced to wait out the emergency while employees and other patrons evacuated the mall. She sued Marshalls on several bases, including an allegation that the store had violated Title III of the ADA by failing to “ design evacuation procedures that comply with Title III of the ADA.” Marshalls moved to dismiss the Title III claim, arguing that its evacuation plans could not violate the Act because there exist no specific rules under Title III for a public accommodation’s emergency evacuation plans. Citing Martin v. PGA Tour, the plaintiff countered that Title III requires a public accommodation to reasonably modify its policies “ as necessary to afford access unless doing so would fundamentally alter what is offered.” Marshalls failed to convince the court that altering its nationwide policy on emergency evacuations would require a fundamental alteration. The court denied Marshalls’ request for summary judgment and allowed the plaintiff to proceed to trial on the Title III issue. Savage, et al. v. City Place Limited Partnership, et al., CCt. Montgomery County, MD, No. 240306, 12/ 28/ 04 ( http:// www. washlaw. org/ pdf/ Opinion_ 12_ 28_ 04. pdf). ( Read about a similar story involving two high school students at http:// www. thewbalchannel. com/ education/ 4048808/ detail. html.)
STUDENT SUES LOCAL UNIVERSITY - A Kutztown University student who uses a wheelchair has sued the school, accusing it of having over 100 specific ADA violations in ten of its forty- plus buildings. The violations include noncompliant bathrooms, library cubicles and entrance doors. The case, filed January 3rd, has been assigned to U. S. District Senior Judge Louis Pollak in Philadelphia.
AREA CALENDAR -
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7th Annual Barstool Open; 10: 00 AM, February 25, 2005; Erie, PA; the MECA United Cerebral Palsy Barstool Open; teams of four will compete in a round of golf in each of 9 bars in downtown Erie; download a registration form at http:// www. ucp. org/ ucp_ localsub. cfm/ 134/ 9452/ 9452/ 9452- 12524
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Partnership for Empowerment: 2005 Disability Policy Seminar; February 28- March 2, 2005; Renaissance Hotel, Washington, DC; The Arc, United Cerebral Palsy ( UCP), American Association on Mental Retardation ( AAMR), the Association of University Centers on Disabilities ( AUCD), and the National Association of Councils on Developmental Disabilities ( NACDD) are uniting again this year to sponsor Partnership for Empowerment, the 2005 Disability Policy Seminar; attendees will hear from leading experts in the field of developmental disabilities, meet with members of Congress and ADA News No. 131 - 5- January 21, 2005
spend a day doing organized lobbying on Capitol Hill; more information and online registration at http:// www. TheArc. org
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Building Sustainable Systems for Independence; February 28- March 2, 2005; Marriott Waterfront Hotel, Baltimore, Maryland; the Centers for Medicare and Medicaid Services are hosting this 2005 New Freedom Initiative Grantee Conference; this year’s conference will highlight the successes and challenges faced by Real Choice Systems Change grantees and by Medicaid Infrastructure grantees; conference agenda and to complete a non- grantee registration application, visit conference website at http:// www. nashp. org// cmsconference2005
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All Star Labor Classic; Sunday, April 3, 2005, 12: 30 p. m. Tip Off; Saint Joseph’s University Fieldhouse, Philadelphia, PA; throughout its 18- year history, the All Star Labor Classic, sponsored by Philadelphia’s Organized Labor, has netted over one million dollars, making it one of the most successful fundraisers benefitting United Cerebral Palsy ( UCP) of Philadelphia and vicinity; this year, the best of the best senior high school basketball players will hit the courts in two “ city vs. suburbs” basketball games complete with an exhibition game, area cheerleaders and dance teams, prize giveaways and more; tickets are free for students and $ 5 for adults; for more information, contact the Development Department at 215- 242- 4200, ext. 202 or e- mail ucpevents@ aol. com
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Motor Cars Under the Stars with Dalí; May 2, 2005, 6: 00 PM; Philadelphia Museum of Art, Philadelphia, PA; UBS Financial Services Presents Motor Cars Under the Stars with Dalí, one of Philadelphia’s premier outdoor automobile events, to benefit United Cerebral Palsy; featuring 24 rare, collector automobiles along with eight modern day classics from Jaguar and Land Rover on the East Terrace of the art museum, as well as a private showing of the only American exhibition of the Salvador Dalí centennial retrospective; the affair also offers guests hors d’oeuvres and drinks passed on the East Terrace, open bar and an array of sumptuous gourmet food stations in the museum’s Great Stair Hall; tickets are $ 250 per person; for ticket information and volunteer opportunities contact Willa Kravitz at ( 215) 248- 7609.
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UCP 5K Corporate Run/ Walk; Thursday, May 19, 2005, 6: 15 PM check- in, 7: 00 PM start; steps of the Philadelphia Art Museum, Philadelphia, PA; take a step to support children and adults with disabilities by meeting on the steps of the Philadelphia Art Museum for a five kilometer ( 3.1 mile) race along West River Drive; team event is open to runners and walkers of all levels employed by the same company, attending the same school, or who are members of the same group or club; help reach the $ 60,000 goal by contacting the Development Department at 215- 242- 4200, extension 289, e- mail ADA News No. 131 - 6- January 21, 2005
seucp@ aol. com, or go to http:// www. active. com/ event_ detail. cfm? event_ id= 1171677 to register your team
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Deaf Women United 10th National Conference; June 25- 29, 2005; Turf Valley Resort, Spa and Conference Center, Ellicott City, Maryland; Deaf Women United conference is a first class event for deaf and hard of hearing women; more information at conference website: http:// www. dwu. org/ conference/ 2005
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UCP Celebrity Golf Tournament; Monday, June 27, 2005; North Hills Country Club in North Hills, PA; tournament brings together celebrities and business representatives from across the Philadelphia area for a fantastic day of golf, fun, and food; help UCP reach its goal of raising $ 70,000 by contacting the Development Department at 215- 242- 4200, extension 289, or e- mail seucp@ aol. com
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13th Annual Outback Steakhouse Charity Classic; Monday, July 11, 2005; Meadowlands Country Club, Blue Bell, PA; golf and tennis outing is one of Philadelphia’s finest benefit tournaments and will once again benefit United Cerebral Palsy; Outback Steakhouse will prepare lunch on the “ barbie” and serve it up on the green; for more information contact the Development Department at 215- 242- 4200, extension 202 or e- mail ucpevents@ aol. com
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Workforce Innovations 2005; July 11- 13, 2005; Philadelphia, PA; leadership of US Department of Labor will discuss the President’s job training initiative, hold a Town Hall meeting on the demand- driven vision of the workforce development system, and host interactive workshops on integrated services; conference information posted soon at http:// www. workforceinnovations. org
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Life Without Limits: UCP of South Central PA Benefit Golf Tournament; July 13, 2005; The Links at Gettysburg, Gettysburg, PA; price per golfer is $ 200 and includes green fees, cart, range balls, dinner, refreshments throughout the day and tee gifts; for more information on UCP’s Life Without Limits Golf Tournament, or to be a sponsor, please contact Janine Boyer at 717- 632- 5552 or via e- mail at jboyer@ ucpsouthcentral. org
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MANY VOICES, ONE VISION: AFP DEVELOPMENTAL DISABILITIES SUMMIT; September 21- 24, 2005; Washington Hilton, Washington, DC; sponsored by Alliance for Full Participation ( AFP), an opportunity for all those committed to making the promises inherent in the Developmental Disabilities Act for Americans a reality to come together to dream, plan and organize around a common vision, to forge a common social reform action agenda that re- energizes disability advocates and establishes a set of shared ADA News No. 131 - 7- January 21, 2005
action, program and policy goals for the decade ahead; more information at conference website: http:// www. allianceforfullparticipation. org/ news/ 060604. asp
ADA HOSTILE WORK ENVIRONMENT CLAIM - The U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, KS, NM, OK) recently affirmed a lower court’s dismissal of the ADA hostile work environment claim of a Kansas deputy sheriff. In the course of several workplace disputes between the deputy and other workers, she was called “ crazy” and “ nuts” and accused of “ going off the deep end.” A fitness for duty exam showed she had no medical or psychological problems, but she was reassigned. Following an argument about the reassignment, the deputy was suspended and later resigned. She sued the county, alleging “ extreme hostile conditions” and claiming a violation of the ADA. The trial court dismissed her claim, finding that the deputy had failed to show that she was a person with a disability, or a person regarded as having a disability, as required by the Act. On review, the Appellate Court acknowledged that a cause of action lies for workplace hostility based on disability. However, the Court agreed that the deputy did not prove that she was regarded as a person with a disability. Although the deputy claimed that her coworkers often made remarks to her that included mental health terminology, she also admitted that some of the remarks were made in jest and that officersroutinely teased each other. Moreover, the county returned the deputy towork after her doctor found her to be fit for duty. [ Look for the Pa. connection in the opinion.] Lanman v. Johnson County, Kansas, CA10, No. 03- 3316, 1230/ 04 ( http:// www. kscourts. org/ ca10/ cases/ 2004/ 12/ 03- 3316. htm).
AROUND THE WORLD - Where There Are No Wheelchairs: an overview of non- governmental approaches to wheelchairs in developing countries by Steve Kurzman. This article offers a brief overview of some of the major non- governmental organizations involved in the provisioning of wheelchairs for people with disabilities in developing countries. Http:// www. disabilityworld. org/ 09- 11_ 04/ access/ wheelchairs. shtml
UTAH, EEOC ENTER INTO PARTNERSHIP - On Wednesday, November 10th, Utah Governor Olene S. Walker and EEOC Chair Cari M. Dominguez signed a joint resolution aimed at enhancing Utah state government employment opportunities for individuals with disabilities nationwide. By this agreement, the State of Utah and the EEOC agreed to jointly review Utah’s recruitment, hiring, and reasonable accommodation programs to identify best practices worthy of emulation by other states. Utah is now one of eleven states to join the EEOC in this pioneer project to further advance the New Freedom Initiative. The Commission’s role will include consultation, outreach, and technical assistance. Last month, the EEOC issued an interim report detailing best practices found in the first four states reviewed - Florida, Maryland, Vermont and Washington. The EEOC plans to issue a final report next October outlining best practices and potential barriers to employment nationwide. Other current partners in this effort are Kansas, Missouri, New Mexico, New Hampshire, North Carolina and Texas. “ The Commission is honored to have the State of Utah as a partner in this project,” said Chair Dominguez. “ Utah demonstrates its leadership in advancing the employment of Americans with disabilities through ADA News No. 131 - 8- January 21, 2005
this effort. We look forward to a collaborative exchange for the benefit of our entire nation.” “ I am pleased Utah is participating in the New Freedom Initiative,” said Governor Walker. “ We are committed to improving the quality of life for all Utahns, including those with disabilities, and I believe providing equal employment opportunities is a wonderful and necessary step to ensuring lifelong success.” ( This story is from the EEOC website.)
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 December edition of OVeRVIEW, the monthly magazine of the Pennsylvania Department of Labor and Industry, Office of Vocational Rehabilitation ( OVR), features an article about pedestrian awareness.
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The December edition of the National Council on Disability Monthly Bulletin is available online at http:// www. ncd. gov/ newsroom/ bulletins/ 2004/ b1204. htm.
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National Disability Policy: A Progress Report, an annual status report published by the National Council on Disability covering the period from December 2001 through December 2002, notes several areas of improvement for people with disabilities as well as many remaining challenges. Http:// www. ncd. gov/ newsroom/ publications/ 2004/ ProgressReport2004. htm
UCP RECEIVES SENSORY ROOM GRANT - On December 23, 2004, UCP of South Central PA received a grant from the Edith L. Trees Charitable Trust for the development of a Multi- Sensory Environment Program to serve children, families, and adults with disabilities in UCP’s service area. The core of the program will be the development of a room to house a variety of sensory equipment, including bubble columns, fiber optics, a Tactile wall, bouncing chairs, and other pieces of equipment. A multi- sensory environment is designed to stimulate the primary senses and is used by both children and adults. It can aid in relaxation or stimulation, is interactive, and responsive to the individual. It has been effective in working with adult learning disabilities, dementia, management of chronic pain, and traumatic brain injuries, and others. In addition to resources established in a specific room, the grant also provides funds for one or more portable sensory satchels, and training for UCP staff interested in the use of the rare resource. UCP of South Central PA serves citizens in York, Adams, Franklin and Fulton Counties.
WEBSITE ASKS FOR COMMENTS ON GOLF CARTS - The U. S. Justice Department has put up a Web site to solicit comments on the future of special golf carts for paraplegics as part of the Department advance notice of rulemaking process for changes to the ADA recreational guidelines. The website is located at http:// www. adaanprm. org/ submitcomment1. aspx. The DOJ’s deadline for comments on the proposed recreational guidelines has been extended until May 31, 2005.
SUMMER TRANSPORTATION INTERNSHIP PROGRAM - The Summer Transportation Internship Program for Diverse Groups is part of the U. S. Department of Transportation’s effort to promote the entry of women, people with disabilities, and members of diverse groups into transportation careers. The internship program for college students offers an exciting 10- week agenda of transportation research, work experience, and field trips. Applications for the program must be received on or before February 28, 2005. Http:// www. fhwa. dot. gov/ education/ stipdg. htm
COMING UP NEXT MONTH - February may be the shortest month, but it has no shortage of observances. Don’t forget National Wise Mental Health Consumer Month, AMD/ Low Vision Awareness Month, Kids Ears, Nose, Throat Health Month ( your kids would never forgive you if you forgot this one), National Children’s Dental Health Month, Muscular Degeneration Month and Heart Health Month; February 6- 12 is National Burn Awareness Week, 7- 14 is Congenital Heart Defect Awareness Week, 13- 19 is National Cardiac Rehabilitation Week ( opens PDF file), Children of Alcoholics Week, National Child Passenger Safety Awareness Week and Duchenne MD Awareness Week, 20- 26 is National Porphyria Week, and February 27- March 5 is National Eating Disorders Screening Program; February 4th is National Wear Red Day 2005 and Give Kids a Smile Day, the 14th is National Donor Day, National Condom Day, National Have- A- Heart Day ( oh, yeah, it’s Valentines Day, too!), and the 18th is National Women’s Heart Health Day.
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ADA News No. 131 - 9- January 21, 2005
ADA News No. 132 - 10- February 25, 2005
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" News Reviews to Peruse"
Number 132 February 2005
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 TO HEAR ADA CASE ON CRUISE VESSELS - On February 28th, the U. S. Supreme Court case will hear oral arguments in Spector v. Norwegian Cruise Line, a case concerning the ADA’s application to foreign cruise vessels sailing in U. S. waters. Several of the plaintiffs in the case are from Wheel Me On, a nonprofit group of disability advocates. More information about the case can be found on the organization’s website at http:// www. wheelmeon. org/ ncl. html and, of course, at http:// www. supremecourtus. gov.
BIG AWARD AGAINST WAL- MART - Wal- Mart, already operating under a court order arising from earlier ADA violations, has been ordered to pay $ 7.5 million to a New York man with cerebral palsy who was hired to be a pharmacy assistant but after one day on the job, was assigned to collect carts and pick up trash in the parking lot. The store’s head pharmacist, who told the store manager that the man was “ not fit for the job,” was also found guilty of discrimination. The jury award will likely be reduced, as damages under the Act are subject to federal caps. Http:// biz. yahoo. com/ prnews/ 050224/ dath039_ 1. html
DISABILITIES WEBSITE OF THE MONTH - The Family Center on Technology and Disability is a resource designed to support organizations and programs that work with families of children and youth with disabilities. The Center offers a range of information and services on the subject of assistive technologies. Whether you’re an organization, a parent, an educator, or an interested friend, you can find information here that supports you in your efforts to bring the highest quality education to children with disabilities. Http:// www. fctd. info ADA News No. 132 - 11- February 25, 2005
HEALTHCARE ACCESS FOR WOMEN AND GIRLS WITH DISABILITIES - The Healthcare Access for Women and Girls with Disabilities project is one facet of a broader healthcare access work sponsored by the Disability Rights Education and Defense Fund, Inc. ( DREDF), and is staffed by Rachel Brill, Esq. Ms Brill is an Equal Justice Works Fellow whose work is funded by a generous grant from Pfizer, Inc. DREDF will be working with a variety of stakeholders in the fields of disability civil rights and healthcare to create a Healthcare Equity Blueprint, and seeks the valuable input that can only come from individual women and girls with disabilities. Women who would like to participate by sharing their healthcare experiences should contact Ms Brill at ( 510) 644- 2555 ( V/ TTY), or via e- mail to dredf@ dredf. org.
AREA CALENDAR -
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Demystifying the Interplay of the ADA with FMLA and Workers’ Compensation; 12: 30- 4: 30 P. M., April 11, 2005; The Blackwell Inn Ballroom, Ohio State University, Columbus, OH; presented by ADA- OHIO; attorneys from the EEOC, private practice, and Workers’ Compensation will help participants understand how these laws complement each other and how to assure that the requirements of all are met; each of the presenters will present content related to one of the three laws and explain the interaction with the other two laws followed by a panel discussion; more information at http:// www. ada- ohio. org
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ADA & FMLA Compliance Update; April 21- 22, 2005; Willard Inter- Continental Hotel, Washington, DC; program will cover the latest trends in disability law, updates on key ADA issues such as “ disability,” “ qualified” and “ direct threat,” and practical “ reasonable accommodation” compliance; court and agency developments in FMLA will be addressed on the second day, as well as the interplay between leave requirements and overlap of the ADA, FMLA and Workers’ Compensation; EEOC counsel will discuss the agency’s latest enforcement positions and ADA cases chosen for EEOC litigation; conference information and brochure at http:// www. neli. org/ programs2. asp? ProgramID= 2
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NELI ADA Workshop; September 19, 2005 in Philadelphia, PA and September 21, 2005 in Washington, DC; workshop presented by the National Employment Law Institute ( NELI) will provide between 6.5 and 7.8 CLE/ CEU credit hours, depending on jurisdiction; info at http:// www. neli. org/ programs2. asp? ProgramID= 12
PASADENA WINS 2004 ACCESSIBLE AMERICA AWARD - Pasadena, California has won the fourth annual Accessible America Contest, the National Organization on Disability has announced. Pasadena is heralded as a national model for its focus on disability issues and its successful design of programs, services and facilities that are accessible for citizens and visitors ADA News No. 132 - 12- February 25, 2005
who have disabilities. According to the U. S. Census, more than 18 percent of the city’s 133,936 residents have one or more disabilities. “ Pasadena’s application showed a dedication to integration and creative ways to involve people with disabilities in their community,” said NOD President Alan A. Reich. “ Congratulations to them for finishing at the top of a group of outstanding applicants. I hope other communities will be inspired by Pasadena, along with past winners Phoenix, Arizona, Irvine, California, and Venice, Florida, as they strive to become more livable for all, including those of us with disabilities. It is exciting that to see many diverse communities nationwide share our goal of full inclusion of America’s 54 million people with disabilities.” Http:// www. nod. org/ content. cfm? id= 1593
AROUND THE WORLD - Madagascar: Disability-- Shame, Honor or Reality? by Fela Razafinjato: “‘ Is having a disability shameful?’ This is the question that always comes to my mind when I have seen disabled people who do not accept their disability and refuse to identify themselves as they are.” Read about one man’s campaign to sensitize people in Madagascar to disability rights at http:// www. disabilityworld. org/ 09- 11_ 04/ news/ madagascar. shtml.
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 Pennsylvania Department of Labor and Industry, Office of Vocational Rehabilitation ( OVR). Http:// www. dli. state. pa. us/ landi/ lib/ landi/ pdf/ ovr/ overview1- 15- 05. pdf
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The January edition of the National Council on Disability Monthly Bulletin is available online at http:// www. ncd. gov/ newsroom/ bulletins/ 2005/ b0105. htm and includes information on Social Security, Temporary Assistance for Needy Families ( TANF) and disaster aid.
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The February 15, 2005 bi- weekly bulletin of the ADA& IT Information Center for the Mid- Atlantic Region, containing lots of information and disability- related news, has been posted at http:// www. adainfo. org/ whatsnew
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Disability Law Guidelines for Design and Construction Industry; RedVector. com has developed a series of online courses on ADA requirements; the series includes five courses and a total of eight hours of level courses open to engineers, architects, interior designers and some contractors; the courses also satisfy Barrier Free or Life Safety Code requirements; navigate to http:// www. redvector. com for more information
ADA News No. 132 - 13- February 25, 2005
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National Report Says Emergency Communication for Deaf and Hard of Hearing People Gets Failing Grade; a national report calls attention to serious weaknesses in the nation’s emergency preparedness infrastructure that compromise the safety and security of 28 million Americans who are deaf or hard of hearing; the report, Emergency Preparedness and Emergency Communication Access: Lessons Learned Since 9/ 11 and Recommendations is the work of the Deaf and Hard of Hearing Consumer Advocacy Network ( DHHCAN), a coalition of 16 national organizations of, by, and for deaf, hard of hearing, late- deafened and deaf- blind individuals, and the Northern Virginia Resource Center for Deaf and Hard of Hearing Persons ( NVRC), a regional education and advocacy center with headquarters in Fairfax, VA; the report is available online in PDF format at http:// www. nvrc. org/ MediaLibrary/ DHHCANEmergencyReport. pdf
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Using Accessible Technology: A Guide for Educators - Over the past 30 years, the number of students who have been diagnosed with disabilities has increased. Additionally, computer use on campus has increased, and a greater number of students with disabilities are learning in inclusive general education classrooms. With the convergence of these trends, it is vital that all students have equal access to computer technology and the educational opportunities technology provides. This 47- page guide from Microsoft Press provides information about Accessible Technology initiatives and resources that are available to educators to ensure that all students have equal access to electronic information. http:// www. microsoft. com/ Education/ EdGuideAccessible. aspx
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Employers’ Guide to Including Employees with Disabilities in Emergency Evacuation Plans - Interest in emergency evacuation planning has increased dramatically since the September 11 terrorist attacks. In turn, the Job Accommodation Network ( JAN) started receiving more calls from employers requesting information about their legal obligation to develop emergency evacuation plans and how to include employees with disabilities in such plans. This publication addresses these issues. Http:// www. jan. wvu. edu/ media/ emergency. html
JOB OPENING AT MID- ATLANTIC ADA & IT INFORMATION CENTER - The ADA& IT Information Center for the Mid- Atlantic Region has a position open for a Technical Assistance Specialist in its Rockville, Maryland office. See the ADA& IT website for more information. Http:// www. adainfo. org
U. S. GOVERNMENT TO AWARD GRANT TO EXPLORE GENETICS OF AUTISM - The National Institute of Mental Health ( NIMH), part of the National Institutes of Health, has announced a 3- year, $ 3 million grant to Johns Hopkins University to study the genetic factors underlying autism. In an average year, 2 to 6 new cases of autism, a neuropsychiatric disorder, arise per 1,000 children. While at least 80 percent of the disorder is due to hereditary factors, ADA News No. 132 - 14- February 25, 2005
experts believe it develops from an interaction between environmental factors and multiple unknown genes. The Johns Hopkins research team proposes to use new genetic analysis technologies to dissect the complex neuropsychiatric traits of autism. “ Although the role of hereditary factors in autism is not in doubt, their nature remains elusive and no single causal gene has yet been identified,” said NIMH Director Thomas R. Insel, M. D. “ This initiative is part of a group of projects put forward by NIMH to begin unraveling the underlying genetics of autism.”
GUIDE- DOG CASE GOES TO TRIAL IN FLORIDA - Last month a disposition hearing was held in the case of State of Florida vs. Lopez on charges that Rodney Lopez denied the rights of a disabled person, a second degree misdemeanor in the Sunshine State. The charges stem from an incident on May 27, 2004, in which Lopez refused to serve a blind woman at his restaurant, Uncle Rodney’s Bar- B- Q, because she was accompanied by her guide dog. “ I told Mr. Lopez that I was blind and that my dog was a guide dog," asserted the woman. “ I also told him that it was against the law to refuse to serve me, as did my husband and the cab driver who gave me a ride!” Lopez entered a plea of not guilty through his attorney, who surprisingly turned down a plea agreement that would have required probation and community service time, and demanded a jury trial. “ We are very interested to find out how a jury will decide such a case,” says Marion Gwizdala, Vice President of the National Association of Guide Dog Users, who has been consulting with the State Attorneys Office as the victim’s advocate. According to Gwizdala, this will be a precedent- setting trial, since a jury has never decided such a case in any jurisdiction in the United States. Trial has been set for March 7th. Lopez faces a maximum sentence of sixty days in jail plus up to a $ 500 fine and court costs.
MS WHEELCHAIR WISCONSIN SUING FOR FULL ACCESS - Twenty- five Wisconsin businesses are the target of lawsuits filed on behalf of the 2004 Ms Wheelchair Wisconsin, Gina Hackel of Freedom, Wisconsin, claiming they violate the ADA. The latest suits were filed with the U. S. District Court in Green Bay in January but more have been filed in batches since December 21st. The suits are part of a pattern of similar cases being brought around the country, especially in California where a state law provides for substantial damages against businesses. The Wisconsin suits do not seek monetary damages, but do ask for costs and attorneys’ fees in addition to seeking a court order that the businesses comply with the Act. According to court documents, Hackel patronized each of the businesses and found several barriers to access. The specific complaints include businesses with an insufficient number of accessible parking spaces, noncompliant bathroom facilities, inaccessible entrance ways and lack of accessible seating in restaurants. Gene Zweben, an attorney for Hackel, said the goal of the suits is to get compliance. “ Typically, once we file the lawsuit the business will ask us what do you want us to do and we have an ADA expert trained in removal of barriers,” he said. “ We request that our expert go in and inspect the problems and make a report and in terms of that we make a settlement agreement.” Zweben said they then enter into a schedule of compliance. JULIETTE RIZZO, MS. WHEELCHAIR AMERICA 2005 - A living example of her platform, “ Power Through Participation: Illuminating Opportunities for People with Disabilities,” Ms. Juliette Rizzo, 36, of Rockville, Maryland, is ready to take disability awareness to new heights, traveling the country to speak, advocate, educate, and inspire others in 2005. She was crowned at the 32nd Annual Ms. Wheelchair America at a pageant in Richmond, Virginia last year, following a week- long competition with women representing states and territories around the U. S. The mission of the Ms. Wheelchair America program is to improve public awareness of the needs and achievements of people with disabilities, and reduce the architectural and attitudinal barriers that still impede their quality of life. The competition identifies the most accomplished and articulate spokesperson for people with disabilities. As Ms. Wheelchair America, Rizzo travels the country, taking public speaking opportunities and meeting with civic, church, and school groups, and state, local and national political leaders to advance her platform and the Ms. Wheelchair America mission. In addition, she works to help start Ms. Wheelchair programs in the states that do not currently have state- level competitions. Rizzo has recently been an honored guest at the Rose Bowl in Pasadena and the Inaugural Ball in Washington.
COMING UP NEXT MONTH - March is American Red Cross Month, Colorectal Cancer Awareness Month, Cataract Awareness Month, Workplace Eye Health & Safety Month, Eye Donor Month, National Chronic Fatigue Syndrome Awareness Month, Talk With Your Kids About Sex Month, National Hemophilia Awareness Month, National Kidney Month, Mental Retardation Awareness Month, National Nutrition Month, and National Social Work Month; National Juvenile Arthritis Awareness Week is March 1- 7, National Save Your Vision Week is March 4- 10, March 7- 13 is National Collegiate Health and Wellness Week, National PTA Alcohol & Other Drug Awareness Week is March 12- 18, Groundwater Awareness Week is March 13- 19, March 14- 20 is Brain Awareness Week and National Pulmonary Rehabilitation Week, Children and Health Care Week is March 16- 20, National Poison Prevention Week is March 17- 23, and March 28- April 4 is National Sleep Awareness Week; Read Across America Day is March 2nd, March 22nd is American Diabetes Association Alert Day, March 24th is World TB Day, the 30th is National Doctors’ Day and March 31st is Kick Butts Day.
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" Disabilities Law, News and Perspective"
Number 133 March 2005
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.
DRIVER’S SUIT AFFIRMED - No good deed goes unpunished. That must have been the feeling of the truck driver and dockworker for USF- Red Star who, after experiencing two unexplained nighttime seizures in 2001, requested he be given non- driving duty until the cause of the seizures could be determined. Instead, his boss sent him home, thinking that he had a “ serious epileptic condition.” In fact, the seizures were caused by a nutritional supplement the driver was taking. Nevertheless, the driver was refused permission to return to work for twenty months. He sued, alleging that his employer regarded him as a person with a disability, and a jury awarded him $ 159,000 plus attorneys fees. The verdict was affirmed on appeal by Senior U. S. District Judge Clarence C. Newcomer for the Eastern District of Pennsylvania. Taylor v. USF- Red Star Express, Inc., USDC ED Pa., No. 03- 2216, 3/ 8/ 05 ( http:// www. paed. uscourts. gov/ documents/ opinions/ 05D0301P. pdf).
COURT WILL HEAR CUSTODIAN’S ADA CLAIM - The U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) has sent the ADA claim of a man ADA News No. 133 - 17- March 21, 2005
with cerebral palsy, who has worked as a custodian for AstraZeneca Pharmaceuticals for more than 27 years, back to the trial court with instructions to reconsider the man’s disability status. The trial court had rejected his claim, finding that the custodian was not “ disabled” under the ADA despite voluminous evidence of mental and physical limitations laid out in Judge Rendell’s opinion. The custodian had been unable to advance in the company, although he had applied for a number of promotions in 25 years, all of which had been denied by his employer. He was also denied a number of accommodations he requested. When he was passed over for a promotion in 2001, he filed a charge with the EEOC and the state disability agency, which investigated and found him to be a qualified individual with a disability under state and federal law. When he sued in federal district court, however, the court granted the employer’s motion for summary judgment, finding that the custodian was not substantially limited in any major life activities. Interestingly, the trial court used the custodian’s successes in life - becoming a trained mediator and fireman, graduating from high school and completing occupational training in computers - as evidence against a finding that he was substantially limited. Judge Rendell, writing for the Court, took issue with the lower court’s decision. “ What a plaintiff confronts, not overcomes, is the measure of substantial limitation under the ADA,” wrote Rendell. “ The crux of the inquiry lies in comparing the way in which [ he] is able to perform activities, if at all, with the way in which an average member of the general population performs the same activities … [ T] he fact that [ the custodian] has been able to become a productive member of society by having a family, working, and serving his community does not negate the significant disability- related obstacles he has overcome to achieve, nor does it undermine his inability, or significantly restricted ability, to learn and perform numerous manual tasks of central importance to daily life.” Emory v. AstraZeneca Pharmaceuticals LP, CA3, No. 03- 4751, 3/ 11/ 05 ( http:// www. ca3. uscourts. gov/ opinarch/ 034751p. pdf).
THIRD CIRCUIT REJECTS PRISONER’S ADA CLAIM - The U. S. Court of Appeals for the Third Circuit looked at a case earlier this month involving a blind New Jersey prisoner’s Title II claim against state prison officials. The claim involved the prisoner’s complaint that prison officials for a period of his internment had deprived him of items such as a cane, a talking watch, and a tape player on which he listened to books on tape. There was no question that he had been deprived of the items, but the state defended by arguing that the Eleventh Amendment precludes a claim for monetary damages under Title ADA News No. 133 - 18- March 21, 2005
II against state actors. Circuit Judge Aldisert in his opinion analyzed precedent ranging from the Supreme Court’s decisions in Garrett and Boerne to its recent decision in Tennessee v. Lane, to a post- Lane decision from the U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL), Miller v. King, another prisoner case. The bottom line? The Court’s decision in Lane is distinguishable because courthouse access is fundamental, while a prisoner’s right to accommodation are not. The opinion sparked a dissent from Chief Judge Scirica who, in recommending remand, wrote: “ Title II does not require prisons to employ any and all means to make available its programs, services, and activities. Nor does it require prisons to make those activities available to a disabled inmate who would otherwise not be eligible to participate. Title II only requires reasonable modifications, taking into account considerations of cost and other burdens, which a prison can satisfy in a number of ways, and which would not fundamentally alter the nature of the service provided.” Cochran v. Pinchak, CA3, No. 02- 1047, 3/ 15/ 05 ( http:// www. ca3. uscourts. gov/ opinarch/ 021047p. pdf).
DISABILITIES WEBSITE OF THE MONTH - The Council for Disability Rights maintains a web site that is an excellent source of information for people in search of information about disability- related programs. Among the more unique offerings on the site are the Disability Rights FAQ ( The CDR Guide to Disability Rights and dealing with the system) and A. D. A. FAQ ( for non- lawyers), helpful for lawyers, too. Take a look at http:// www. disabilityrights. org.
AREA CALENDAR -
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The Next Frontier: Postsecondary Options for Students with Intellectual Disabilities Pre- conference and 2005 CEC Convention and Expo; April 6- 9, 2005; Baltimore Convention Center, Baltimore, MD; sponsored by the Council for Exceptional Children; sessions on instructional methods and strategies, Progress Monitoring, Autism spectrum disorders, preparing students for transition, and positive and safe learning environments; conference web site at http:// www. cec. sped. org/ conventions/ maryland_ 2005
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Pennsylvania Office of Vocational Rehabilitation Public Meetings are scheduled in various locales throughout the Commonwealth during the month of April; the purpose of the OVR Public Meetings is to invite public input on the Federal Fiscal Year 2006 Combined Agency State Plan; go to the Department of Labor and Industry online calendar for the month of April to find a public meeting near you: http:// www. dli. state. pa. us/ landi/ iCal/ calendar. asp
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Annual Conference 2005: Strategies and Solutions for Workforce Development; May 18- 20, 2005; Hershey Lodge and Convention center, Hershey, PA; conference brings together more than 1,300 professionals from all facets of workforce development as well as product and service providers; cosponsored by federal and state agency partners in the workforce development system, the annual conference features five workshop rounds, speakers from state and federal government, awards for program participants and employers, exhibits, entertainment, and many opportunities to network and share best practices with other workforce development professionals; conference brochure at http:// www. papartners. org/ FINAL% 20CONFERENCE% 20BROCHURE. pdf
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2005 National Health Care for the Homeless Conference; June 2- 4, 2005; Hyatt Regency Washington on Capitol Hill, Washington, DC; conference will feature workshops, including special policy sessions, poster presentations, a resource area, and tours of local programs; info from Jason DeStefano, Conference Registrar, at ( 888) 439- 3300, ext. 242. e- mail hch@ prainc. com, web site http:// www. bphc. hrsa. gov/ hchirc
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International Conference on Deaf Women and HIV/ AIDS in Africa; June 10- 12, 2005; Gallaudet University Kellogg Center, Washington, DC; purpose of the conference is to increase awareness of the importance of reaching all segments of the African population in the fight against HIV/ AIDS; a special focus will be to identify effective ways to reach and communicate with deaf women in Africa who have HIV/ AIDS; for additional information contact Dr. Ovetta Harris, Howard University, Department of Communication Sciences and Disorders, 525 Bryant Street, NW, Washington, DC 20059, phone: 202- 806- 6990, e- mail: oharris@ howard. edu; conference info at http:// www. cdcnpin. org/ scripts/ display/ ConfDisplay. asp? ConfNbr= 5418
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20th Annual Self Help for Hard of Hearing ( SHHH) People Annual Convention; June 30- July 3, 2005; Omni Shoreham Hotel, ADA News No. 133 - 20- March 21, 2005
Washington, DC; five tracks of educational and interactive workshops: Hearing Aids and Assistive Technology, Cochlear Implants, Family and Relationships ( coping strategies), Health/ Hearing Health/ Medical Science, and Accessibility and Public Policy Issues; conference web site at http:// hearingloss. org/ html/ conv2005. html
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Ducky Derby 2005; July 30, 2005; Hanover, PA; the “ Ducky Derby” fund raiser is a combined effort of UCP and the Hanover Kiwanis; race will be held during Dutch Days in Hanover; “ Ducky Adoption Certificates” are sold and prizes are awarded to the first ducks to cross the finish line; proceeds are split 50/ 50 between UCP and the Hanover Kiwanis to provide services to children in the Hanover area
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29th Annual National Wheelchair Softball Tournament; August 11- 13, 2005; Columbus, OH; the National Wheelchair Softball Association ( NWSA) is the governing body for Wheelchair Softball; there are over 30 teams nationwide; game is played on hard surfaces such as a parking lot for easy maneuverability in a wheelchair and with a 16- inch softball, which allows wheelchair players to keep one hand on the wheelchair while catching softball without a glove; game is played under the official rules of the 16- inch slow pitch softball as approved by the Amateur Softball Association of America; more information at http:// ohwcsports. org/ nwst2005. htm
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UCP Celebrity Auction; September 17, 2005; Laird Hall on the campus of Wilson College in Chambersburg, PA; hundreds of items from athletes, authors, actors, and politicians will be up for auction at UCP of South Central PA’s 1st annual Celebrity Auction; currently include items from such celebrities as Jewel, The Wiggles, Alabama, Joe Montana, Brett Favre, Jim Taylor, the Philadelphia Eagles, Terry Bradshaw, Bud Selig, Barbara Walters, Tiger Woods, Robin Williams, Joe Paterno, Matt Damon, Dale Earnhart, Jr., Celine Dion, Emmitt Smith, and more; for a complete list of auction items, contact UCP of South Central PA at 717- 632- 5552
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World Congress and Exposition on Disabilities; December 1- 3, 2005; Pennsylvania Convention Center, Philadelphia, PA; the WCD, the world’s leading disability event, is committed to improving the lives of those with disabilities, their families and caregivers, physicians, direct support professionals, allied ADA News No. 133 - 21- March 21, 2005
healthcare professionals, educators and adapted physical education specialists and everyone working within the disability community; featuring a huge 200+ vendor expo, an unparalleled educational program along with tons of invaluable special events and activities, the WCD is able to provide a unique forum for the exchange of ideas and products for persons with disabilities and special health care needs, as well as for those involved with their care and development; conference website at http:// www. wcdexpo. com
CAPITOL DEMONSTRATION - Activists rallied at the State Capitol on March 8th demanding better public transportation for people with disabilities. They came seeking an expansion of the Rural Transportation Shared Ride program for Persons With Disabilities, currently in place in only 24 of 67 Pennsylvania counties. Advocates are concerned that money allocated for the program is being diverted for other uses, including public transportation. A PennDOT spokesman said four counties - Carbon, McKean, Potter and Cameron - will soon be added to the program. Read more at http:// www. pennlive. com/ search/ index. ssf?/ base/ news/ 1110363701110100. xml? pennnews.
AROUND THE WORLD - The World Committee on Disability ( WCD) and the Franklin and Eleanor Roosevelt Institute ( FERI) honor the Hashemite Kingdom of Jordan with the Franklin Delano Roosevelt International Disability Award, to be awarded in a New York ceremony March 23rd. The award acknowledges Jordan’s exemplary efforts to improve the lives of people with disabilities in their country, as called for by the U. N. World Programme of Action Concerning Disabled Persons. Jordan, one of the first Middle East countries to enact disability specific legislation and introduce building codes aimed at accessibility, is being recognized for a wide range of activities supporting their disability community. The award includes $ 50,000 which is given to a disability organization in Jordan. King Abdullah II of The Hashemite Kingdom of Jordan, will accept the award.
IRS EMPLOYEE WITH MCS ‘ NOT QUALIFIED’ - A federal district court in Maryland recently found a program analyst with the Internal Revenue Service not to be a qualified person with a disability because her multiple chemical sensitivity ( MCS) prevented her from performing the essential functions of her job. The analyst and her physicians insisted that she be allowed to work in an environment free of any chemical odors including perfumes, pesticides, air fresheners, copiers ADA News No. 133 - 22- March 21, 2005
and cleaning solutions. Although she was offered several different office sites, none of them were found suitable by the employee, who was discharged when she refused to return to work. The court, finding that the employer had made all reasonable efforts to accommodate the analyst, and had treated her no differently because of her disability than other employees, dismissed her claim brought under the Rehabilitation Act. Nanette v. Snow, USDC Md., No. RWT 03- CV- 925, 10/ 29/ 04 ( http:// www. mdd. uscourts. gov/ Opinions152/ Opinions/ NanettevSnow03cv925Opinion. pdf).
ACCESS BOARD TO PROPOSE GUIDELINES FOR OUTDOOR DEVELOPED AREAS - This summer, the U. S. Access Board plans to propose new guidelines for outdoor developed areas, including trails, beach access routes, and picnic and camping sites. The guidelines will be responsive to the need for greater guidance in this area since issues of terrain and limited levels of site development have raised many questions on how, and to what extent, access is to be achieved. The upcoming proposal will focus specifically on outdoor developed areas owned or managed by the Federal government. Once published, it will be available for public comment.
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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Righting the ADA, a superior series of policy briefs published by the National Council on Disability, is available on the NCD website at http:// www. ncd. gov/ newsroom/ publications/ 2003/ policybrief. htm. Covering every significant ADA decision by the Supreme Court for the last several years, the briefs examine in detail the legal precedents set by each. Must reads for disabilities lawyers, the briefs are available free from the NCD web site.
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The February edition of OVeRVIEW, the monthly magazine of the Pennsylvania Department of Labor and Industry, Office of Vocational Rehabilitation ( OVR), features a retraining success story.
ADA News No. 133 - 23- March 21, 2005
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The February edition of the National Council on Disability Monthly Bulletin is available online at http:// www. ncd. gov/ newsroom/ bulletins/ 2005/ b0205. htm.
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The January 2005 edition of Washington Watch, a publication of The Arc and United Cerebral Palsy, is available on line at http:// www. ucp. org/ ucp_ generalsub. cfm/ 1/ 8/ 33/ 12529- 12530. Washington Watch provides in depth news and analysis on disability policy from Washington.
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Volume 3, Issue 1 of the Job Accommodation Network’s Consultant’s Corner discusses an issue “ near and dear to our hearts”: Parking. Http:// www. jan. wvu. edu/ corner/ vol03iss01. htm
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Disability and Retirement: The Early Exit of Baby Boomers from the Labor Force - Although the oldest members of the baby- boom generation will not become eligible for Social Security retirement benefits until 2008, when they reach age 62, many of them already have left the labor force. Not surprising, the most common reason for boomers to leave the workforce is disability. This paper - prepared as part of the Congressional Budget Office’s ( CBO’s) ongoing examination of the future composition of the labor force and the performance of the economy - uses data from a national survey to provide information about the men and women who leave the labor force before age 62 and their sources of income. In keeping with CBO’s mandate to provide objective, impartial analysis, the paper makes no recommendations. Http:// www. cbo. gov/ showdoc. cfm? index= 6018& sequence= 0
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The March 15, 2005 bi- weekly bulletin of the ADA& IT Information Center for the Mid- Atlantic Region, in Focus, contains lots of information and disability- related news, including an excellent article, Emergency Response: Plan, Prepare, and Practice!. The newsletter has been posted at http:// www. adainfo. org/ whatsnew
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The Winter 2005 edition of InFocus, the newsletter of the ADA& IT Information Center for the Mid- Atlantic Region, is available on line at http:// www. adainfo. org/ publications/ newsletter/ winter05. asp with even more articles and resources about emergency preparedness and people with disabilities.
ADA News No. 133 - 24- March 21, 2005
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Access Board Guidelines for Passenger Vessels - On November 26, 2004, the U. S. Access Board released for public review and comment, information, including draft guidelines, on its effort to address access to passenger vessels under the ADA. The standards currently used to enforce the ADA’s transportation provisions cover access to buses, vans, rail cars and other vehicle types but do not address passenger vessels. The Board is developing detailed guidelines for various types of vessels that will be used to supplement the standards, and has placed draft guidelines on its web site at http:// www. access- board. gov/ news/ pvag. htm.
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10 Small Business Mistakes - This thirteen- minute video, found in the ADA Video Gallery, identifies common mistakes that small businesses make when trying to comply with the ADA and addresses the importance and value of doing business with 50 million people with disabilities. The video features statements by store owners expressing their doubts or misunderstandings about the ADA followed by responses from Assistant Attorney General R. Alexander Acosta and other Department of Justice employees explaining the law in common sense terms. The videos are in Real and QuickTime formats. See the video on line at http:// www. ada. gov/ videogallery. htm# tensmallbusinessmistakescaptioned
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Quick Tips: Sign Language Interpreters is a new free publication developed by the ADA& IT Information Center and directed to small businesses needing information about effective communications. Download or order the two- sided publication at http:// www. adainfo. org/ publications/ item. asp? ITEM_ ID= 391& DEPARTMENT_ ID= 56.
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Emergency Preparedness Resources - Certainly a hot topic of late ( and deservedly so), emergency preparedness and evacuation for persons with disabilities is achieving a prominence it lacked heretofore, especially prior to September 11, 2001. Here is a collection of web sites with information on this subject: National Organization on Disability, http:// www. nod. org/ emergency; Centers for Disease Control, http:// www. bt. cdc. gov/ index. asp; Ready. gov, http:// www. ready. gov; U. S. Department of Justice, http:// www. ada. gov/ emergencyprep. htm; Job Accommodation Network, http:// www. jan. wvu. edu/ media/ emergency. html; Federal ADA News No. 133 - 25- March 21, 2005
Communication Commission, http:// www. fcc. gov/ cgb/ consumerfacts/ emergencyvideo. html; Federal Emergency Management Agency, http:// www. fema. gov/ kids; ADA& IT Information Center, http:// www. adainfo. org/ links/# emergency.
MUSHER DOESN’T LET BLINDNESS INTERFERE - Legally blind Rachael Scdoris has twice been named one of the nation’s 100 Most Outstanding Female Athletes. On March 5th, Scdoris began a snow- bound trek, one of more than 100 mushers in the grueling Iditarod Trail Sled Dog Race. While the course - some 1,100 miles over rough terrain in bitter cold - is difficult enough, the 20- year- old Scdoris faces another challenge: She is legally blind. Scdoris suffers from congenital achromatopsia, a genetic disorder that affects the eye’s ability to take in images. Her father, Jerry, is a champion musher who in 2003 founded the Atta Boy 300 Oregon World Cup “ Race for Vision,” which promotes research in ophthalmology. The Iditarod race from Anchorage to Nome, Alaska, will not be the first sled dog race for Scdoris, of Bend, Oregon. At 15, she entered Wyoming’s IPSSSDR competition, the largest sled dog race not held in Alaska, and became the youngest person to have completed the nearly 500- mile race. Scdoris, running in her first Iditarod, decided on March 16th to drop out of the race at the remote Eagle Island checkpoint, 732 miles into the race from Anchorage to Nome. She was in 66th place at the time she scratched, and quit “ for the well being of her team.”
COMING UP NEXT MONTH - April is another busy month. I hope you’ll take advantage of the links below to learn more about these observances, such as: Alcohol Awareness Month, National Youth Sports Safety Month, Cancer Control Month, Women’s Eye Health and Safety Month, Cesarean Awareness Month, Counseling Awareness Month, IBS ( Irritable Bowel Syndrome) Awareness Month, National Donate Life Month, Sexual Assault Awareness Month, National Minority Health & Health Disparities Month, Child Abuse Prevention Month, National Occupational Therapy Month, National Facial Protection Month, National Foot Health Awareness Month, National Sexually Transmitted Diseases ( STD) Awareness Month, and National Autism Awareness Month; April 3- 9 is Sleep Awareness Week, 4- 10 is National Public Health Week and Building Safety Week, 11- 17 is Oral, Head and Neck Cancer Awareness Week, 20- 26 is National Organ/ Tissue Donor Awareness Week, 13- 19 is National Minority Cancer Awareness Week, 17- 23 is Heimlich Maneuver Week and National Volunteer Week, 24- 30 National Infant Immunization Week, and 30- May 7 National Safe Kids Week; April 2- 4 is Alcohol Free Weekend; April 15- 17 is National Youth Service Day; April 2nd is YMCA Healthy Kids Day, the 7th is National Alcohol Screening Day and World Health Day, the 13th is Kick Butts Day, the 16th is World Voice Day, the 30th and Earth Day is the 22nd.
ADA News No. 134 April 25, 2005
ADA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 134 April 2005
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, Editor. 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 the DEP OCC Homepage. All past issues of this publication are archived on the DEP internal website.
CIRCUIT COURT MAKES THINGS A LITTLE TOUGHER FOR PUBLIC COLLEGES - The U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) has ruled that the 11th Amendment does not protect public colleges from lawsuits filed by students under Title II of the ADA. The decision grew out of a student lawsuit against Florida International University in which the students charged the University for not adequately providing for deaf and hard of hearing students in classroom situations. The University claimed immunity, and a federal judge dismissed the student’s suit in December 2001, basing his decision on the that of the U. S. Supreme Court in University of Alabama v. Garrett. The U. S. Justice Department entered the suit on the side of the students last June, and the Appellate Court delayed its ruling until after the U. S. Supreme Court issued its decision in Tennessee v. Lane, in which the Supreme Court found that Title II applies where a state deprives a citizen of a “ fundamental right,” such as voting. On April 6th, a unanimous 11th Circuit panel reversed the lower court. “ Discrimination against disabled students in education affects disabled persons’ future ability to exercise and participate in the most basic rights and responsibilities of citizenship, such as voting and participation in public programs and services,” wrote Circuit Judge Kravitch for the Court. Association for Disabled Americans, Inc. v. Florida International University, CA11, No. 02- 10360, 4/ 6/ 05 ( http:// www. ca11. uscourts. gov/ opinions/ ops/ 200210360. pdf).
CRUISE SHIP ACCESS DIVIDES SUPREME COURT - U. S. Supreme Court justices appeared split on the issue raised in Spector v. Norwegian Cruise Line Ltd. ( see ADA News, No. 132, February 25, 2005), whether foreign- flag cruise ships must comply with the Americans with Disabilities Act because they sell tickets to U. S. passengers and dock at U. S. ports. Spector, several other people with disabilities and their companions sued the Bahamian- flag cruise operator for discrimination under the ADA after taking cruises on the company’s ships sailing from the port of Houston. They said that customers with disabilities are charged higher ticket rates and that the vessels are not configured to enable them to use facilities including bathrooms and swimming pools. The U. S. Court of Appeals for the Fifth Circuit ( TX, LA, MS) ruled last year that the ADA does not apply to foreign- flag ships, even ADA News No. 134 − 27− April 25, 2005
though they account for the vast majority of cruises taken by American tourists. Judge Edith Jones, often mentioned as a potential Supreme Court nominee, said that neither the text of the statute nor its legislative history indicated any intent by Congress to include foreign cruise ships in the ADA's jurisdiction. The 5th Circuit ruling conflicted with the 2000 ruling in Stevens v. Premier Cruises, a U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) decision that found ADA jurisdiction. Because Florida, the starting point of two- thirds of American cruises, is in the 11th Circuit, the $ 25 billion industry is eager for a definitive resolution of the split. Justices Ginsberg and Souter peppered attorneys for each party with tough questions regarding American sovereignty on foreign cruise lines and foreign countries, and whether the cruise lines should be permitted to discriminate without restriction of American law. Http:// www. supremecourtus. gov/ oral_ arguments/ argument_ transcripts/ 03- 1388. pdf.
REJECTION OF ACCOMMODATION CAUSES DISMISSAL - A registered nurse who worked 21 years for Western Reserve Care System failed to establish a prima facie case of disability discrimination when the U. S. Court of Appeals for the Sixth Circuit ( MI, OH, KY, TN) found she was not a qualified individual with a disability under the ADA because she preemptively rejected a reasonable accommodation. After she broke her leg, the nurse was off work for nearly six months while she recovered. When she was cleared to return, the 44- year- old nurse met with her employer and expressed reservations about her ability to return to her former position, a general duty staff nurse. Her reservations were confirmed by a functional capacity evaluation ( FCE), which found that the bending and lifting required by the position had been made impossible by pain in her knees complicated by osteoarthritis. Her physician wrote to the employer, requesting that she be considered for other positions. Although she was eventually appointed to a job she could perform with no loss of salary or benefits, the nurse sued, alleging that she had been discriminated against because of her age and disability. The trial court ruled against the nurse on the issue of whether she was a qualified person with a disability, and summarily dismissed her complaint. The Appellate Court affirmed. “[ I] n order to satisfy its duty under the ADA,” wrote Judge Richard Mills for the Court, “ an employer is only required to transfer an employee to a position comparable to the employee’s prior position. … [ A] lthough an employee is not required to accept an offered accommodation, if an individual rejects a reasonable accommodation, the individual will no longer be considered a qualified individual with a disability.” Hedrick v. Western Reserve Care System and Forum Health, CA6, No. 02- 3898, 1/ 9/ 04 ( http:// pacer. ca6. uscourts. gov/ opinions. pdf/ 04a0012p- 06. pdf).
DISABILITIES WEBSITE OF THE MONTH - The Pennsylvania Human Relations Commission has debuted a new web site, the PHRC Accessibility/ Disability Laws Site, designed to assist architects, building owners, developers, and other property owners and building professionals in bringing their properties into compliance with the ADA. Found at http:// www. accessibilitypa. com, the web site provides a guided evaluation through a series of questions that assist an individual in determining what federal and state laws and regulations apply to their properties and how to meet their requirements. The determinations should not be considered legal advice, but merely a guide for interested persons who may be reluctant to hire an attorney to answer what may be simple design questions. The web site is also designed to assist persons with disabilities and others who want to know how to search for ADA requirements before contacting businesses about apparent non- compliance.
SUMMARY JUDGMENT REVERSED - A twenty- year veteran attorney of the Immigration and Naturalization Service’s New York and Puerto Rico District Offices succeeded in convincing the U. S. Court of Appeals for the First Circuit ( ME, PR, NH, MA, RI) that a trial court had improperly dismissed her Rehabilitation Act claim that her employer had failed to reasonably accommodate her disability, depression. In 1997, after being assigned to the Puerto Rico office, the attorney, until then highly evaluated, began experiencing tension headaches and lethargy which affected her performance. The job- related problems precipitated “ acrimonious episodes” with her supervisor, resulting in a formal reprimand. Following one such episode, the attorney complained to the regional Counsel, revealing to him that she was taking anti- depressant medication. Shortly after, she was approved for a medical leave requested by her psychiatrist. The difficulties between the attorney and her supervisor continued and worsened upon her return to work, and she requested an accommodation ( a transfer to another office) after ADA News No. 134 − 28− April 25, 2005
six months. Although her behavior became progressively more disruptive, the attorney’s request for transfer was not granted. A few months later, she received a letter from an INS division chief denying that she had shown that she was a person with a disability, generally ignoring all of the medical evidence she had submitted. Following several more office blowups, the attorney was terminated. In reviewing the trial court’s grant of summary judgment to the INS, the Appellate Court found that the attorney had submitted sufficient evidence showing that she was suffering from a mental impairment; that her impairment substantially limited major life activities such as sleeping, eating, learning, concentrating, thinking, working and interacting with others; that she was a “ qualified individual” for her position; and that she had requested and been denied reasonable accommodation for her disability. ( The Court noted that the employer had utterly failed to argue against these findings.) The Court found that it could not state that no reasonable factfinder could return a verdict on the attorney’s Rehabilitation Act claim, and remanded the lawsuit. Calero- Cerezo v. U. S. Department of Justice, CA1, No. 02- 2643, 1/ 14/ 04 ( http:// www. ca1. uscourts. gov/ cgi- bin/ getopn. pl? OPINION= 02- 2643.01A).
GARRETT CASE BACK AGAIN - I know you’ll all remember the case University of Alabama v. Garrett, in which the U. S. Supreme Court refused to allow a University of Alabama employee to collect ADA damages against the public university, holding that her claim was barred by the Eleventh Amendment. On remand, the U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) found that though Garrett had lost her ADA action, her action for damages under Section 504 of the Rehabilitation Act was still viable, and sent the action back to the trial court for a decision. The district court's most recent opinion grants summary judgment to the University on Garrett's 504 claim. The University virtually conceded that it was subject to the Rehabilitation Act, so the jurisdictional question that had occupied so many courts was substantially moot. On the merits the trial court found that the University had not discriminated against Garrett, and that she was not a person with a disability based solely upon her having cancer, writing dismissively, “[ e] verybody knows someone who either has cancer or has had cancer.” “ During treatment, a cancer patient may or may not be able to function at full capacity, but neither does a person with a bad cold function at full capacity,” wrote Judge William Acker. “ Instead, that person, and those with whom he works, look forward to his recovery and to his restoration to the workplace.” [ Needless to say, the Judge’s comparison of cancer with the common cold will not endear him with cancer survivors or their families. - Ed.] Garrett v. University of Alabama, USDC ND Ala., No. 97- AR- 0092- S, 1/ 13/ 05 ( opinion not available on line).
AREA CALENDAR -
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Web cast on Saving Lives: Including People with Disabilities in Emergency Planning; 3- 4: 30 PM EST, April 27, 2005; Pat Pound, Member, National Council on Disability ( NCD), will present this Web cast in which he will discuss the recently- released NCD report; to link to this Web cast and download accompanying materials visit: http:// www. ilru. org/ html/ training/ webcasts/ calendar. html; for instructions on how to access a Web cast visit: http:// www. ilru. org/ html/ training/ webcasts/ instructions. html; please visit this site ahead of time to test and ensure your computer is configured and updated to participate in the Web cast; for technical assistance, please check out our FAQs at: http:// www. ilru. org/ html/ training/ webcasts/ FAQ. html, or contact a Web cast team member at webcast@ ilru. org or 713/ 520- 0232 ( v/ tty).
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National Forum of the Thirty- First Institute on Rehabilitation Issues; May 2- 3, 2005; Double Tree Crystal City Hotel, Arlington, VA; two draft publications: Consumer Organizations - Important Resources for Vocational Rehabilitation and Leading and Managing Change in Public Vocational Rehabilitation will be discussed with Forum participants in order to assist in preparing the documents for publication; more info at http:// www. gwu. edu/~ rrcep/
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NCD FORUM; 8: 00 AM - 5: 30 PM, May 3, 2005; Auditorium ( formerly DC Council Chambers) One Judiciary Square, 441 4th Street, NW, First Floor North, Washington, DC ( Judiciary Square Metro Station); the National Council on Disability ( NCD) is sponsoring five public forums around the country to gather ADA News No. 134 − 29− April 25, 2005
testimony from people with disabilities, their families, and their advocates on the impact the Americans with Disabilities Act has had on their lives; find more information at http:// www. ncd. gov/ newsroom/ news/ 2005/ a05- 487. htm
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The Leadership Conference on Civil Rights; May 4, 2005; Hilton Washington and Towers, Washington, DC; annual awards dinner will this year honor Julian Bond, Senator Tom Daschle, and former Pennsylvania First Lady Ginny Thornburgh; conference information at http:// www. civilrights. org/ about/ lccr/ humphrey/ about_ dinner. html
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Fifth Annual Transitional Jobs Conference; May 5- 6, 2005; Washington, DC; National Transitional Jobs Network, an organization that works to support peer networking, technical assistance, and policy advocacy, and the Center for Employment Opportunities, an organization that provides job readiness and placement services to men and women returning from prison to New York City and others under community supervision, will co- sponsor the Fifth Annual Transitional Jobs Conference; subjects to be discussed focus on transitional jobs regarding populations that benefit, how they are funded, and issues of federal policy; conference information at http:// www. transitionaljobs. net/ Events. htm
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National Council on Disability Quarterly Meeting; 10: 00 a. m. - 1: 00 p. m., May 9, 2005; Access Board Conference Room, 1331 F Street, NW, Suite 850, Washington, DC; agenda will include a discussion on recommendations in NCD’s long- term services and supports report; http:// frwebgate. access. gpo. gov/ cgi- bin/ getdoc. cgi? dbname= 2005_ register& docid= fr30mr05- 124
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Workforce Alliance Third National Conference; May 18- 19, 2005; Washington, DC; two- day conference offers information and tools needed to win - both in Washington and back home - and to expand skills training for community workers and businesses; more information at http:// www. workforcealliance. org/ network/ 2005NationalConference/ conference_ homepage. htm
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From Roots to Wings: Guiding Youth with Disabilities to Employment; 2005 National Transition Conference Sponsored by the Rehabilitation Services Administration; June 16th & 17th, 2005; Capital Hilton, 1001 16th Street, NW Washington, DC; conference will bring together vocational rehabilitation and education policy makers and practitioners, as well as personnel from collaborating agencies who work with transitioning youth with disabilities; conference information at http:// www. dtiassociates. com/ rsatransitions
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National Council on Independent Living ( NCIL) Annual Conference; July 11- 14, 2005; Grand Hyatt Washington Hotel, 100 H St. NW, Washington, DC; more information at conference web site, http:// www. ncil. org/ Conferences/ index. html
DIABETIC IRS EMPLOYEE PROCEEDS WITH REHABILITATION ACT CLAIM - An Internal Revenue Service employee with insulin- dependent diabetes may proceed with his Rehabilitation Act claim that he was illegally rejected for a criminal investigator position because of his condition, the U. S. Court of Appeals for the Seventh Circuit ( OH, IN, WI) ruled last December. Reversing a lower court’s grant of summary judgment to the IRS, the Appeals Court held that the employee raised genuine issues of material fact as to whether he can perform the essential functions of the investigator job and can perform them without threatening the safety of himself or others. A reasonable factfinder could determine that the employee has a disability within the meaning of the Rehabilitation Act because the treatment regimen he must follow substantially limits him in the major life activity of eating, Judge Ripple said, writing for the Court. However, the Court agreed with the district court that the IRS did not regard the employee as disabled. Branham v. Snow, 7th Cir., No. 03- 3599, 12/ 17/ 04 ( http:// www. ca7. uscourts. gov/ tmp/ I30WLT7Z. pdf).
ADA News No. 134 − 30− April 25, 2005
BARRIERS RESTRICT VOTING BY PEOPLE WITH DISABILITIES - Twenty- one percent of U. S. adults with disabilities - representing more than eight million potential voters - said in a recent survey that they have been unable to vote in presidential or congressional elections due to barriers faced either at, or in getting to, the polls. This poll result is part of a larger disability survey project studying voter preferences, issues of concern, and barriers to voting during the last election season. The survey project by the National Organization on Disability was made possible by a grant from Carnegie Corporation of New York. “ Issues of voting rights are not confined to a single state or a single voting bloc,” said N. O. D. President Alan A. Reich. “ They are national issues with national repercussions. We strongly encourage election officials to respond to this serious problem and to direct all poll workers to redouble efforts to ensure that those of us with disabilities receive all necessary attention and assistance.” The NOD poll, conducted by Harris Interactive ® , found that of the roughly one- fifth of U. S. adults with disabilities who said they had wanted to vote were not able to do so.
AROUND THE WORLD - Disability World this month spotlights a program from the Maldives, a tiny country of 1200 islands scattered across the Indian Ocean. The “ First Steps” Early Childhood campaign has surprised experts at its effectiveness in changing awareness and attitudes about persons with disabilities. Read more about this successful program at http:// www. disabilityworld. org/ 12- 02_ 05/ children/ maldives. shtml.
AVAYA EMPLOYEE WITH PTSD NOT A QUALIFIED INDIVIDUAL - The U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, KS, NM, OK) affirmed a lower court’s dismissal of an ADA lawsuit brought by an Avaya Communications, Inc. “ service coordinator” diagnosed with Post- Traumatic Stress Syndrome ( PTSD). The coordinator had experienced PTSD when, in a previous job with the U. S. Postal Service, she had witnessed the murder of several coworkers. She had changed jobs and worked successfully for Avaya for over two years when she learned that another employee, in the course of a worksite argument, had threatened a coworker with a knife and threatened to “ go postal.” A few days after this incident, when the coordinator learned that the threatening employee was being returned to work, she became ill, claiming to be physically and emotionally unable to work. Her doctors said that because of her PTSD, she was incapable of working in an environment she perceived as unsafe. During a short- term disability leave, the coordinator informed Avaya that she could return to work if either the threatening employee or the coordinator was reassigned to another facility, or the coordinator was permitted to work from her home. Avaya determined that the threatening employee could not be transferred and that the coordinator could not perform her job from her home, and suggested she apply for a transfer. The coordinator investigated and found that the only coordinator positions available in the state were in her current facility, where the threatening employee also worked. When the coordinator failed to return to work at the end of her disability leave, she was terminated. She sued Avaya under the ADA alleging a failure to accommodate and discriminatory termination. The trial court dismissed her claim, concluding that the coordinator’s job required her presence at the facility, and the Appellate Court affirmed. The Court held that the coordinator was not a qualified individual with a disability because she could not perform all of the essential functions of her position, in particular, working at her assigned Avaya facility. “[ T] he ADA does not [ ] require an employer to modify an essential function of an existing position in order to accommodate a disabled employee,” wrote Circuit Judge Baldock. “[ A] requested at- home accommodation is unreasonable when the accommodation eliminates an essential function of the job.” The “ request for an at- home accommodation is unreasonable on its face because it seeks to eliminate an essential function of the service coordinator position … [ The coordinator’s] physical attendance in Avaya's administration center is an essential function of the service coordinator position.” Mason v. Avaya Communications, Inc., CA10, No. 03- 6035, 1/ 13/ 04 ( http:// laws. lp. findlaw. com/ 10th/ 036035. html).
TOP DISABILITY NEWS STORIES PICKED BY READERS - The readers of the Inclusion Daily Express - a daily disabilities news digest that describes its mission “ to provide disability advocates with the most up- to- date news, information and commentary about community inclusion, self- determination and disability rights, in a way that saves time and is easy to use” - have chosen their top disabilities news stories of 2004. Some you will find familiar, and others will be new. See the entire list at http:// www. inclusiondaily. com/ news/ top2004. htm. ADA News No. 134 − 31− April 25, 2005
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 March edition of OVeRVIEW, the monthly magazine of the Pennsylvania Department of Labor and Industry, Office of Vocational Rehabilitation ( OVR), features information about public comment on the 2004 State Plan.
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The March edition of the National Council on Disability Monthly Bulletin is available online at http:// www. ncd. gov/ newsroom/ bulletins/ 2004/ b1004. htm
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The April 2005 edition of the NCPAD News, the monthly newsletter of the National Center on Physical Activity and Disability discusses sports nutrition, exercise for persons with intellectual/ developmental disabilities, strength training for persons with cerebral palsy, and reviews a new book by Lynn Anderson, PhD: Inclusion: Including People with Disabilities in Parks and Recreation Opportunities; free subscription to this newsletter is available on the web site
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The March 2005 edition of Washington Watch, and a special April edition on the Terri Schiavo case, are now available. Washington Watch, a publication of The Arc and United Cerebral Palsy, is available on line at http:// www. ucp. org/ ucp_ generalsub. cfm/ 1/ 8/ 33. Washington Watch provides in depth news and analysis on disability policy from Washington.
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Design For Accessibility: A Cultural Administrator’s Handbook is a “ how- to” reference and resource guide for integrating older adults and people with disabilities into all aspects of an organization, particularly those of an arts or humanities related arena published by the National Assembly of State Arts Agencies ( NASAA), the National Endowment for the Arts, the National Endowment for the Humanities, The John F. Kennedy Center and the MetLife Foundation. The guide includes a legal overview concerning accessibility, an architectural access guide to keep in mind when planning for those with disabilities, accessibility in arts and humanities activities, and directions for training staff, board members, volunteers and constituents. Http:// www. nasaa- arts. org/ publications/ design_ access. shtml
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The US Department of Justice has issued a new technical assistance publication on September 20, 2004 titled An ADA Guide for Local Governments: Making Community Emergency Preparedness and Response Programs Accessible to People with Disabilities This publication can be viewed on- line at http:// www. usdoj. gov/ crt/ ada/ emergencyprep. htm
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Saving Lives: Including People with Disabilities in Emergency Planning “ provides an overview of steps the Federal Government should take to build a solid and resilient infrastructure that will enable the government to include the diverse populations of people with disabilities in emergency preparedness, disaster relief, and homeland security programs. This infrastructure would incorporate access to technology, physical plants, programs, and communications. It also would include procurement and emergency programs and services,” according to National Council on Disability chairperson Lex Frieden. This report provides examples of community efforts with respect to people with disabilities, but by no means does it provide a comprehensive treatment of the emergency preparedness, disaster relief, or homeland security program efforts by state and local governments. Http:// www. ncd. gov/ newsroom/ publications/ 2005/ saving_ lives. htm
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OVR 2004 Annual Report - Report details the Federal Fiscal Year 2004 accomplishments of the Office of Vocational Rehabilitation; report describes program accountability, including employment data, program ADA News No. 134 − 32− April 25, 2005
expenditures, cost- effectiveness and program accomplishments; report also highlights numerous OVR customer achievements ; available in PDF format at http:// www. dli. state. pa. us/ landi/ lib/ landi/ pdf/ ovr/ ovr_ 2004_ annual_ report_ full. pdf ( Caution: Large file)
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Issue No. 6 of Disability Rights online News, a monthly update about activities in the area of disability rights of the U. S. Department of Justice, Civil Rights Division, is available at http:// www. justice. gov/ crt/ ada/ newsltr0405. htm; this month’s issue includes reports on theater accessibility, interpreters, mediation and a number of the Division’s cases
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Expanding Your Market: Customers with Disabilities Mean Business is a new pamphlet from the U. S. Department of Justice, Civil Rights Division intended to encourage business owners to see persons with disabilities as valuable customers, and to make their businesses more accessible. Http:// www. usdoj. gov/ crt/ ada/ buisstat. htm
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Assistance Dogs International, Inc. has two videos on its website that were produced by the California Hotel & Lodging Association Education Foundation - We Welcome Service Animals and Responding to Service Animal Calls ( for law enforcement); both videos can be viewed at http:// www. adionline. org/ videos/ videoHomePage. htm
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National Council on Disability update on the Fifth Session and the UN Convention on the Rights of People with Disabilities, published March 17, 2005; the Fifth Session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities met from January 24 – February 4, 2005, in New York City; this briefing paper relates developments during that session. Http:// www. ncd. gov/ newsroom/ publications/ 2005/ fifth_ session. htm
UCP FOUNDER GOLDENSON DIES - Isabelle Charlotte Weinstein Goldenson, the founder of United Cerebral Palsy ( UCP), died at age 84 of natural causes at her home in Sarasota, Florida, on Monday, February 21st. She was the wife of Leonard H. Goldenson, founder and chairman of American Broadcasting Companies ( ABC). “ Mrs. Goldenson was a role model of one person making a difference. She wasn’t just the mother of a daughter with cerebral palsy, but of a movement for all children with any disability,” said Stephen Bennett, President and CEO of United Cerebral Palsy. After their first daughter – Genise – was born with cerebral palsy, Mr. and Mrs. Goldenson founded United Cerebral Palsy, with Jack and Ethel Hausman. They oversaw the fledgling organization as it took root across the nation and became a force for people with disabilities. More than fifty years later, United Cerebral Palsy is one of the largest health charities in the United States, providing direct services to 30,000 people daily and advocating for the independence and full citizenship of 54 million Americans with disabilities.
SETTLEMENT RESULTS IN CHANGES FOR BEACHES IN BARNEGAT LIGHT - Nearly three years ago, a Pennsauken, New Jersey man sued the municipality of Barnegat Light for failing to comply with the ADA. In particular, he complained that the beach- access points weren’t made so that someone in a wheelchair could enter from the street. The man, according to his suit, has limb- girdle muscular dystrophy and is confined to a wheelchair. According to the terms of a settlement reached recently with the municipality, the borough agreed to meet most of his demands. Some of the things the borough either has done or will do, according to the settlement, are reserve two parking spaces at the Borough Recreation Area for drivers with disabilities; build a hard- surface path there on which a wheelchair could enter the area; and adjust beach ramps, as well as post signs at corners alerting pedestrians and motorists of those wheelchair access points. Municipal officials say that the borough was scheduled to award a contract for the recreation area work that had not been completed previously.
NORTHWEST SETTLES DISABILITY BIAS SUIT - The U. S. Equal Employment Opportunity Commission has announced that it has reached a settlement with Northwest Airlines over a disability discrimination lawsuit. The ADA News No. 134 − 33− April 25, 2005
EEOC sued Northwest in 2001 over allegations that it excluded people with epilepsy or insulin- dependent diabetes from being considered for jobs as airport ramp workers and cleaners. The carrier denied allegations raised under the ADA, stating that its hiring processes are and were proper. Under the agreement with the EEOC, Northwest will offer individual assessments of the ability of applicants to safely perform the key job functions. The airline said it had a longstanding practice of providing the assessments. The airline agreed to pay a settlement of $ 510,000 that will be distributed among 28 people the EEOC represented. “ This lawsuit was an important reminder to employers that the ADA requires that they give individualized assessments to their employees with disabilities to determine whether they could perform their jobs with or without reasonable accommodation,” said Chester Bailey, an EEOC official based in the Milwaukee district office.
INVESTIGATION: ONLINE TRAVEL AND RESERVATION SERVICES NOT GUARANTEEING ACCESSIBLE ROOMS - Disability Rights Advocates is investigating complaints about online travel and reservation services ( such as Hotels. com, Expedia. com, etc.) not guaranteeing accessible rooms booked through their service. A number of wheelchair users have reported booking an accessible room through such online services only to arrive at the hotel and find that there was no accessible room available for them. If you or someone you know has not used one of the online discount services because they would not guarantee you an accessible room when using their service; or has booked an accessible room at anytime through online travel and reservation services but were not given an accessible room upon arrival at the hotel; you are asked to contact Stefanie Cox, outreach coordinator, at general@ dralegal. org; phone: 510- 451- 8644 ( mention that you are calling in regards to online travel reservations); fax: 510- 451- 8511; or U. S. Mail: Stefanie Cox, 449 15th Street, Suite 303, Oakland, CA 94612.
COMING UP NEXT MONTH - Wow! May sure is another busy month! Try to enjoy the outdoors while observing: Allergy and Asthma Awareness Month, American Stroke Month, Breathe Easy Month, Digestive Diseases Awareness Month, Hepatitis Awareness Month, Healthy Vision Month, Lyme Disease Awareness Month, International Dental Awareness Month, Clean Air Month, Older Americans Month, Huntington's Disease Awareness Month, National Bike Month, National Arthritis Month/ Annual Arthritis Walk, Tuberous Sclerosis Month, National Drinking Water Month, National Sight- Saving Month: Ultraviolet Awareness Month, National Celiac Sprue Awareness Month, National Critical Care Awareness and Recognition Month, Correct Posture Month, National High Blood Pressure Month, National Melanoma/ Skin Cancer Detection and Prevention Month, National Mental Health Month, National Oncology Nursing Month, Better Sleep Month, National Osteoporosis Awareness and Prevention Month, National Teen Pregnancy Prevention Month, National Physical Fitness and Sports Month, National Trauma Awareness Month, Better Hearing and Speech Month, and World Neurofibromatosis Awareness Month; May 1- 8 is Children's Mental Health Week, National Safe Kids Week, Brain Tumor Action Week, North American Occupational Safety and Health Week, Cover the Uninsured Week and National Mental Health Counseling Week, 2- 8 is National Suicide Awareness Week, 6- 12 is National Nurses Week, 8- 14 is National Hospital and Healthcare Week, Multiple Chemical Sensitivity ( MCS) Awareness Week, National Alcohol and Other Drug- Related Birth Defects Week, National Stuttering Awareness Week, National Women’s Health Week, Food Allergy Awareness Week and National Nursing Home Week, 9- 15 is National Birth Center Week, 11- 17 is National Osteoporosis Prevention Week, 15- 21 is National Emergency Medical Services Week, National Running and Fitness Week and National Medical Transcriptionist Week, 16- 20 is National Neuropathy Week, 22- 28 is Older Americans Mental Health Week and Tinnitus Awareness Week, 23- 30 is Recreational Water Illness Prevention Week, and 24- 31 is Buckle Up America! Week; May 2nd is Melanoma Monday, the 3rd is National Childhood Depression Awareness Day, the 4th is National Anxiety Disorders Screening Day, Asthma Awareness Day on Capitol Hill and National Day to Prevent Teen Pregnancy/” Mothers Day Comes Early for Too Many of Our Nation’s Teens”, the 6th is National Nurses Day, the 8th is Student Nurses Day, the 9th is National Women’s Check- Up Day, the 10th is Sex Differences in Health Awareness Day, the 11th is National School Nurse Day, the 12th is International Chronic Fatigue Syndrome Awareness Day, the 14th is Cornelia de Lange Syndrome ( CdLS) Awareness Day, the 18th is National Employee Health and Fitness Day and HIV Vaccine Awareness Day, the 20th is National Bike to Work Day, the 24th is National Schizophrenia Awareness Day, the 25th is National Senior Health and Fitness Day and the 31st is World No Tobacco Day. If you can’t find something ew to learn about in this list, you’re just not trying!
ADA News No. 135 May 18, 2005
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ADA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 135May 2005
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, Editor. 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 the DEP OCC Homepage. All past issues of this publication are archived on the DEP internal website.
‘ REAL’ OFFER NECESSARY BEFORE MEDICAL EXAM ALLOWED - American Airlines jumped the gun when it administered “ post- offer medical examinations” to three prospective flight attendants before making a “ real” offer of employment, according to the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU). The three applicants were given offers of employment conditional on successively passing background checks and medical examinations. Prior to the completion of the background checks, however, they were all each given a medical exam which determined that each of them tested positive for HIV. American informed the applicants that their offers were being withdrawn, citing their failure to disclose their HIV status on their employment applications. The applicants sued under the ADA and state law, contending that American’s requiring the information about their HIV status prior to making a job offer constituted an unlawful medical exam under the Act. The applicant’s claimed that their rights under the ADA had been violated when American administered medical examinations prior to making a “ real job offer,” since their employment at the time of the exams still remained contingent on their successful background checks. A federal trial court granted summary judgment to the airline, and the applicants appealed. The Appellate Court reversed and remanded the case for trial. “ To issue a ‘ real’ offer under the ADA … an employer must have either completed all non- medical components of its application process or be able to demonstrate that it could not reasonably have done so before issuing the offer,” wrote Circuit Judge Raymond Fisher for the Court. “ When employers rescind offers made conditional on both non- medical and medical contingencies, applicants cannot easily discern or challenge the grounds for rescission,” Fisher explained. “ When medical considerations are isolated, however, applicants know when they have been denied employment on medical grounds and can challenge an allegedly unlawful denial.” The requirement that a real offer of employment be made prior to any medical examination “ also protects applicants who wish to keep their personal medical information private, he added. “ Many hidden medical conditions, like HIV, make individuals vulnerable to discrimination once revealed. The ADA [ allows] applicants to keep these conditions private until the last stage of the hiring process. Applicants may then choose whether or not to disclose their medical information once they have been assured that as long as they can perform the job’s essential tasks, they will be hired.” Leonel v. American Airlines, CA9, No. 03- 15890, 3/ 4/ 05 ADA News No. 135 − 35− May 18, 2005
( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ 6E61E2925B9DC6E788256FF0007309AE/$ file/ 0315890. pdf? openelement).
AFFIRMED - WORKER FIRED FOR HER DISABILITY - Ever wonder why employers work so hard to get ADA claims dismissed, keeping them from a jury, and often settle cases that are not dismissed? The relatively low number of actual jury decisions is not surprising when one considers that ADA jury members are often sympathetic to persons who are fired or discriminated against on the basis of a disability. Such was the recent case of the Rubbermaid production worker who was terminated after nineteen years on the job, allegedly because she could not perform her job. The U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, KS, NM, OK) affirmed a jury award in her favor, finding insufficient reason to disturb a finding that the worker was a qualified person with a disability. The worker’s disability - idiopathic thrombocytopenia purpura ( ITP), a permanent blood and lymph node disease which causes increased risk of spontaneous and prolonged bleeding when injured - prevented her from working with knives and sharp cutting implements at the employer’s plant. The Court dismissed Rubbermaid’s argument that the worker did not have a disability, finding that evidence supported a conclusion that her inability to perform work involving sharp edges could be a substantial restriction on her ability to work in a broad class of jobs. The plant had a rotation policy that required workers to move among half of the various positions on the assembly line in order to counter repetitive motion problems; however, evidence at trial showed that half or more of the plant jobs did not involve any sharp edges. Therefore, the Court concluded, even if modifying the plant policy would have been reasonable, it was unnecessary, as the worker could rotate among 50% or more of the positions. ( Always interesting where, in order to prove that she is a “ qualified person with a disability,” the worker has to prove she could do the job while also showing that her disability substantially limited her ability to do the same. - Ed.) Praseuth v. Rubbermaid, Inc., CA10, Nos. 03- 3147 & 03- 3160, 5/ 11/ 05 ( http:// www. kscourts. org/ ca10/ cases/ 2005/ 05/ 03- 3147. htm).
SUPREME COURT WATCH - In the midst of a session that seemed notable for the absence of ADA- related cases, the U. S. Supreme Court has just accepted two prisoner cases ( actually the same case) from the U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) for review. Goodman v. Georgia, 04- 1236, presents the following question: Whether, and to what extent, Title II of the ADA validly abrogates state sovereign immunity for suits by prisoners with disabilities challenging discrimination by state- operated prisons, a question on which the courts of appeals are in conflict. The “ second” case, U. S. v. Georgia, 04- 1203, presents the following related question: Whether Title II of the ADA is a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment, as applied to the administration of prison systems. The cases set up another legal showdown over the power of Congress to tell states what to do. The Court ruled in 1997 that prisoners are protected by the Act; however, lower courts have differed on whether prisoners can recover damages from state correctional systems. The case was brought by a Georgia prisoner who, because he uses a wheelchair in an unaccessible prison, claims that he cannot use the bathroom or bathe without assistance. The U. S. Justice Department has filed the case on behalf of the inmate.
STATE SENATOR HONORED - Pennsylvania State Senator Pat Vance will be honored on June 7th as the “ Legislator of the Year” by the Pennsylvania Industries for the Blind and Handicapped. The gathering at the Radisson Penn Harris Hotel in Camp Hill honoring the Camp Hill Republican will also feature a keynote address by Harry Belafonte.
ADA News No. 135 − 36− May 18, 2005
SEN. HARKIN INTRODUCES ‘ MONEY FOLLOWS THE PERSON’ BILL - Senator Tom Harkin ( D- Iowa) recently introduced a bill in the U. S. Senate that would require federal reimbursement for community services an individual needs during his or her first year after leaving an institution or nursing home. Senate Bill 528, the “ Money Follows the Person Act of 2005,” seeks to lessen or eliminate economic barriers to de- institutionalizing people with disabilities, and ensure that community- based care is available and affordable. The ADA requires states to relocate persons with disabilities from institutions to community- based care programs when institutionalization is not necessary. ( Olmstead v. L. C., 527 U. S. 581 ( 1999)). Several states have already chosen to utilize “ Money Follows The Person” as a pilot program. In Texas, over 1,200 people came out of nursing homes under this program, and the average savings to the state of Texas per person was $ 10,000. The state of Utah uses it as an administrative practice, while the states of Maryland and Kansas have adopted it as state law. “ This bill would allow people with disabilities to have choices that we all take for granted - to live with family and friends, not with strangers; to live in a neighborhood, not a nursing home or institution,” Harkin said. “ Federal Medicaid policy should reflect the consensus that Americans with disabilities should have an equal opportunity to contribute to our communities and participate in our society as full citizens.”
REFUSAL TO HIRE BLIND MAN COSTS COMPANY $ 8 MILLION - A federal jury in Denver has awarded more than $ 8 million in a case brought by a 36- year- old blind man after finding EchoStar Communications refused to hire him solely because of his disability. Jury foreman Doug Auger said the evidence against the Douglas County, Colorado satellite- TV company was so damning that some jurors wanted to award the plaintiff as much as $ 30 million. “ This was a compromise,” Auger said. “ I know it probably sounds like a lot of money … but it's something we felt was equitable.” EchoStar said it plans to file an appeal, even though the seven- figure award is almost entirely symbolic. The 1999 lawsuit was brought by the Equal Employment Opportunity Commission under the ADA where, because of a federal cap on civil rights damages, the plaintiff stands to gain no more than $ 300,000 plus $ 7,000 in lost wages. The complaint sought $ 100,000 in compensatory damages, plus a court order requiring EchoStar to initiate anti- discrimination reforms that would welcome blind workers to join the company's 7,500 customer- service workforce. EchoStar attorneys argued the company did not hire the plaintiff as a customer representative because he was “ too slow” in completing a Braille proficiency test, and maintained the company's computers aren't designed for “ text to speech” software that allows blind workers to answer and research customer questions and issues. Plaintiff’s computer software consultant, however, testified that the adaptive software technology has been used successfully for years by call center operations for MCI, American Express, Diners Club and Pizza Hut. Nevertheless, an EchoStar spokesman said following the verdict that requiring the company to redesign its call center computers was over the top. “ We are disappointed with the outcome because the requested accommodation to perform the job was not reasonable,” he said. An EEOC attorney said that the plaintiff now works for the Internal Revenue Service. “ He’s a customer service representative, and he loves it,” she said. EEOC press release at http:// www. eeoc. gov/ press/ 5- 6- 05. html.
DISABILITIES WEBSITE OF THE MONTH - It’s been a few years since we recommended Wired on Wheels as our website of the month; and oh what improvements have been made! Wired on Wheels, or WOW!, is a not- for- profit internet organization dedicated to the accessibility of public accommodations. Its mission? To empower people with disabilities so everyone can make better decisions about the places they visit. This goal is accomplished by an easy- to- use locator with which ADA News No. 135 − 37− May 18, 2005
persons concerned about accessibility can browse cities or search to locate accessible places to dine in any state or city. Great for summer vacation planning! Check out the new and improved Wired on Wheels at http:// www. wiredonwheels. org.
RECOVERY OF “ ACTUAL DAMAGES” SET ASIDE - The U. S. Court of Appeals for the Eighth Circuit ( ND, SD, MN, NE, IA, MO, AK) sustained a jury’s finding that a snowmobile manufacturer - Arctic Cat, Inc. - failed to accommodate and discriminated against a former worker with multiple sclerosis ( MS), although it vacated the jury’s award of actual and front- pay damages. The worker had been employed at the manufacturer’s factory for five years when he was diagnosed with MS. After making his condition known to his supervisors, he was granted a number of accommodations. After he was forced to change jobs by a realignment, he began encountering difficulties in his new position. His physician recommended the company employ an occupational therapist, but the company never contacted one. In December 2000, the worker was seasonally laid off and five months later received a letter informing him that he would not be recalled because the company was “ unable to find a position which meets [ his] work restrictions.” The jury hearing his subsequent ADA claim, finding that the manufacturer had failed to reasonably accommodate the worker and that his disability was a motivating factor in its decision not to recall him, awarded $ 71,000 in damages. However, the jury also found that the manufacturer would have made the decision refusing to recall the worker even without considering his disability. The Court rejected the manufacturer’s claim on appeal that the decision should be reversed because the worker’s claim that he was a “ qualified individual” was contradict by the statement made on his application for SSI that he was “ totally disabled,” finding that the worker had met the U. S. Supreme Court test for adequately explaining the discrepancy between the two positions. ( See Cleveland v. Policy Mgmt. Sys. Corp., 526 U. S. 795, 797 ( 1999)). The manufacturer did prevail, however, on its argument that the award of actual damages was incorrect. “ Because Arctic Cat prevailed on this ‘ same decision’ defense,” stated the Appellate Court in vacating the damage award, “ compensatory or backpay damages could not be awarded on the verdict finding disparate treatment.” Voeltz v. Arctic Cat, Inc., CA8, No. 04- 2810, 5/ 11/ 05 ( http:// www. ca8. uscourts. gov/ opndir/ 05/ 05/ 042810P. pdf).
AREA CALENDAR -
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Autism is a World; Airing on CNN, Sunday, May 22 at 8 PM EST; this documentary is a candid and compelling look into the mind of Sue Rubin, a 26- year- old Los Angeles woman living with autism; visit the movie website, http:// www. stateart. com/ productions/ disabilities/ autismisaworld/ index. asp
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INPEX 2005; June 8- 11; Pittsburgh ExpoMart, Monroeville, PA; America’s largest invention trade show, this is a unique exposition showcasing numerous inventions, new products and innovations available to business and industry; more information at the Expo website, http:// www. inventionshow. com
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Raising the Bar 2005; June 15 - 17; Turf Valley Resort and Conference Center, Ellicott City, MD ; one of the region's premier conferences for workforce development professionals; for more information, call toll free 866- 544- 9677 or visit the Maryland Workforce Development Association, http:// mwda. org/ conference05/ 05conference. htm
ADA News No. 135 − 38− May 18, 2005
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Pittsburgh Employment Conference for Augmentive and Alternative Communication ( AAC) Users; August 5- 7, 2005; Pittsburgh Employment Conference ( PEC) for Augmentive Communicators, considered by some to be the most significant event in the field of AAC, is the largest gathering of people who use AAC in the world; the biennial PEC conference will be held at the Sheraton Station Square in Pittsburgh; for additional information, please visit the conference website at http:// mywebpages. comcast. net/ amiprofeta/ index7. htm.
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National Summit on Developmental Disabilities; September 21 - 24; Washington Hilton, Washington, DC; disability summit will include a coalition of eleven disability organizations; read more about the 2005 disability summit at the Alliance for Full Participation, http:// www. allianceforfullparticipation. org/ news/ 060604. asp
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2005 White House Conference on Aging; October 23- 26; Hyatt Regency Capitol Hill, Washington, DC; conference occurs once a decade to make aging policy recommendations to the President and Congress, and to assist the public and private sectors in promoting dignity, health, independence and economic security of current and future generations of older persons; conference web site at http:// www. whcoa. gov
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National U. S. Business Leadership Network Annual Conference; November 1 - 3, 2005; Pittsburgh, PA; for more information, visit the U. S. Business Leadership Network, http:// www. usbln. com/ events/ index. htm
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World of Possibilities Senior Expo; November 4 - 5, 2005; Dulles Expo and Conference Center, Chantilly, VA; free event will provide an opportunity for attendees to explore a vast array of disability- related products and services; visit Caring Communities at http:// expo. caringcommunities. org for more information
MONTANA GOVERNOR SIGNS BRAILLE BILL - Governor Brian Schweitzer of Montana this month signed into law the “ Blind Persons’ Literacy Rights and Education Act,” a bill designed to make it easier for blind and sight- impaired students to become proficient in Braille in the public school system. The law funds four new positions at the Montana School for Deaf and Blind Children for outreach employees to help public schools improve their programs for students with visual impairments. In addition, it provides funds for more electronic Braille transcription equipment and access to computerized textbooks and literature that can be reproduced in Braille script. Until the mid- 1970s, most blind children were taught in residential schools,” said Jim Marks, government affairs director for the Montana Association of the Blind. “ When the trend shifted to mainstreaming, much of the expertise and library resources were lost. Schools would put a tape recorder in front of a kid and say, ‘ That’s good enough.’ Now we’re starting to see a major turnaround.” Learning by listening to a tape recorder is fine for subjects like history and literature, according to Matt Castner, a blind Great Falls resident who created his own Internet business, but there are limitations to that method.
FORMER- GOVERNOR RIDGE JOINS NOD BOARD - Tom Ridge, the former Governor of Pennsylvania who served as the first U. S. Secretary of Homeland Security, has joined the National Organization on Disability’s ( NOD) Board of Directors, the nonprofit advocacy group has announced. Soon after assuming his White House position, Governor Ridge met with NOD leadership and gave ADA News No. 135 − 39− May 18, 2005
his key support to issues pertaining to the disability community. He continued his regular dialogue with NOD and as Secretary of the new Department of Homeland Security, partnered with NOD’s Emergency Preparedness Initiative last September for the first ever conference on Emergency Preparedness for Individuals with Disabilities. “ Governor Ridge’s staunch support for our efforts and his partnership were critical to launching the program to ensure that Americans with disabilities will be included in the planning process and protected during future emergencies,” said NOD President Michael R. Deland. “ His history of business leadership and public service make Tom Ridge a superb ally and friend in steering the course of NOD’s work.”
EEOC CHAIR UNVEILS PLAN TO ENHANCE AGENCY PRESENCE - Cari M. Dominguez, Chair of the EEOC, has unveiled a proposal designed to reposition the Commission's field structure to enhance the agency's enforcement presence and delivery of services; improve the efficiency of its operations; and reduce or eliminate costs. Under the plan, two new offices will be opened. “ Given the shifting demographics, changing business environment, explosive technological advancements, and budgetary considerations of our times, this plan will recast the Commission in a stronger and more viable position to carry out its mission,” Dominguez said. “ The proposal continues to advance the President's expectations - of every executive- branch agency - to run a well managed, highly efficient, customer- centered, and results- driven organization.” Http:// www. eeoc. gov/ press/ 5- 10- 05a. html
AROUND THE WORLD - “ Disabled People's Organizations Working in Tsunami- Affected Areas - The Global Partnership for Disability and Development has created the first compilation of information on the work of disabled persons organizations ( DPOs) in the context of the tsunami. The information was obtained from a Listserv created by the World Bank's Disability and Development Team for members of DPOs. This DPO summary is being incorporated into a larger report by the Civil Society Team, which will also include information on how foundations are reacting.” Http:// www. disabilityworld. org/ 12- 02_ 05/ news/ tsunaminews. shtml
REP. PISTELLA PUSHES FOR CREATION OF OFFICE FOR PEOPLE WITH DISABILITIES - Pennsylvania State Representative Frank J. Pistella, Allegheny County Democrat , has continued his aggressive advocacy for the disabled by reintroducing legislation to create an “ Office for People with Disabilities” within the governor’s office in Pennsylvania. “ The complexities of government bureaucracy sometimes leave people with disabilities confused and frustrated,” Pistella explained. “ The Office for People with Disabilities would be the one place they and their families and caregivers could go to for answers and help in solving their problems and meeting their needs.” Rep. Pistella said that under the legislation ( H. B. 1479), the Office for People with Disabilities would be responsible for creating interagency agreements and working relationships with other government bodies, as well as public and priva