ADA news news reviews to peruse.

              ADA News No. 142 January 23, 2006
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DA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 143 January 2006
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.
SUPREME COURT DECIDES GEORGIA PRISONS CASE - The U. S. Supreme Court handed down a decision January 10th in U. S. v. Georgia, a case that involved a paraplegic prisoner who sued the state challenging the conditions of his confinement in a Georgia prison under Title II of the ADA. The prisoner alleged that he was confined for 23 to 24 hours per day in a 12- by- 3 foot cell in which he could not turn his wheelchair around; that he was unable to use the toilet and shower without assistance due to the state's failure to provide accessible facilities; that he was often denied assistance, and as a result injured himself multiple times attempting to transfer from his wheelchair to the shower or toilet and that on other occasions he was forced to sit in his own feces and urine; and that he was denied medical treatment and access to virtually all prison programs and services because of his disability. Georgia argued that the prisoner could not sue the prison for damages because Congress had exceeded its power in authorizing damage suits against states under the ADA’s public services provisions. The U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) had thrown out his ADA claims on that basis, but in a narrow decision that leaves many questions unanswered, the Court ruled that Congress has the authority to apply the ADA to state prisons, at least insofar as it reaches conduct that could also be challenged under the Fourteenth Amendment. In writing the decision for a unanimous Court, Justice Antonin Scalia said that the prisoner’s claims differed from those of plaintiffs in other Supreme Court cases in this area because they also alleged independent violations of the Constitution itself. The decision states that while the justices have disagreed about the scope of Congress’ power to bar conduct that goes beyond the reach of the Constitution, “ no one doubts” that Congress has the power to pass laws that enforce the Fourteenth Amendment by creating remedies against the states for conduct that actually violates the Fourteenth Amendment. However, the Court declined to decide how far beyond the boundaries of the Constitution Congress could go. Justice Scalia noted that the Eleventh Circuit had sent the case back to the trial court to allow the prisoner to file a revised complaint, and that once the new complaint was filed, the courts could sort out precisely which ADA claims were authorized. U. S. v. Georgia, USSCt. No. 04- 1203, 1/ 10/ 06 ( http:// a257. g. akamaitech. net/ 7/ 257/ 2422/ 10jan20061050/ www. supremecourtus. gov/ opinions/ 05pdf/ 04- 1203. pdf).
REHIRING FALLS UNDER ADA, 9TH CIRCUIT RULES - In a late- December ruling, a ADA News No. 142 January 23, 2006
split three judge panel of the U. S. Court of Appeals for the Ninth Circuit ( WA, OR, ID, CA, NV, AZ, AK, HI, GU) upheld a jury’s verdict that a company can legally fire a person and then violate the ADA by not giving him his job back. The decision squarely places reinstatement complaints, like claims over hiring and firing decisions, under the Act. The California jury had ruled that Pacific Bell did not improperly fire a service technician in 1998 when it found out that he had failed to disclose a misdemeanor conviction for battering a police officer 13 years earlier. The technician appealed to the company for reinstatement after getting that conviction expunged. But the company did not rehire him, contrary to how it handled other similar cases, because the technician had a history of mental illness. At trial, the technician told the jury that other employees who had been terminated for failing to disclose convictions “ had been reinstated or offered a conditional reinstatement.” “ One employee had a conviction for possession of marijuana with intent to sell, one had a petty theft conviction, and one had a felony domestic violence battery conviction,” wrote Circuit Judge Edward Leavy for the majority. Indeed, Leavy said, evidence showed that it was the technician’s time in a mental institution between 1982 and 1985 that caused the company to refuse re- employment. At trial, the technician’s former manager testified that his superior “ wanted to eliminate the possibility of having someone in the business that had an ‘ emotional dysfunction.’” The technician’s institutionalization stemmed from his 1982 acquittal by reason of insanity for attempting to murder a quadriplegic friend. Circuit Judge Consuelo Callahan wrote in dissent that Pacific Bell was justified in refusing to rehire an employee it perceived as dangerous unless that perception was shown to be unreasonable. Josephs v. Pacific Bell, CA9, No. 03- 56412, 12/ 27/ 05 ( http:// www. ca9. uscourts. gov/ ca9/ newopinions. nsf/ 93C3769C26C92A54882570E4005571E5/$ file/ 0356412. pdf? openelement).
DOT OFFERS TRAINING PROGRAM TO HELP AIRLINES - The U. S. Department of Transportation last month began offering commercial airlines a training program that will make it easier for them to comply with laws protecting the rights of disabled air travelers. The new model training program highlights practices found by airlines to work best in meeting the needs of individuals with disabilities. The training program is designed to help airlines comply with the Air Carrier Access Act ( ACAA), which prohibits discriminatory treatment of persons with disabilities in air transportation. While airlines are not required to implement the model training program, the Department encourages carriers to use it to complement their existing disabled access training programs. “ Everyone has a right to be treated equally when they travel by air,” said U. S. Transportation Secretary Norman Y. Mineta. “ This new model training program is part of our effort to help the airlines provide disabled travelers with the service to which they are entitled.” The training program provides guidance for employees and contractors of air carriers that serve passengers with disabilities. The program suggests practices and procedures for airline personnel to follow to help disabled travelers with boarding, deplaning and making connections, as well as information on the airlines' responsibilities in such areas as service animals and assistive devices. Information about the DOT training program can be found online at http:// airconsumer. ost. dot. gov/ training.
DISABILITIES WEBSITE OF THE MONTH - No need to look far and wide for the creator of this month’s featured website. The Central Pennsylvania Amputee Support Team ( AST) serves and encourages its members to enhance their physical and emotional health through educational and recreational programs, peer counseling, and public relations. ADA News No. 142 January 23, 2006
Founded by current President Dick Nickle in December 2001, the AST was the first amputee support group organized in the midstate and is one of the most active support groups in the country. The group is dedicated to empowering members, caregivers, families and friends to optimize the care and well being of amputees in central Pennsylvania. Bi- monthly meetings are held across the Susquehanna from Harrisburg in Mechanicsburg, PA. Check out the group’s website at http:// www. amputeesupportteam. com.
KIDNEY FAILURE IS A DISABILITY - The U. S. Court of Appeals for the Fourth Circuit ( WV, VA, MD, NC, SC) fortunately corrected what appears to be an unmistakable error by a lower court that found that a bank officer’s end- stage renal disease ( kidney failure) was not a disability under the ADA because, in the lower court’s opinion, “ the elimination of bodily waste” is not a major life function. While measured, the Appellate Court’s opinion criticizes the finding, stating “ the elimination of bodily waste is, moreover, not only ‘ of central importance to daily life,’ [ citation omitted] but of life- sustaining importance. Without it, hazardous toxins would remain in the body and eventually become fatal. For all of these reasons, waste elimination also fits comfortably within the Equal Employment Opportunity Commission’s ( EEOC) non- exhaustive list of major life activities.” In deciding that end- stage renal disease can qualify as a disability under the Act, the Circuit joins several other federal appellate courts, including the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI). Heiko v. Colombo Savings Bank, F. S. B., CA4, No. 04- 2046, 1/ 10/ 06 ( http:// pacer. ca4. uscourts. gov/ opinion. pdf/ 042046. P. pdf).
AREA CALENDAR -
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16th Annual Conference On State Mental Health Agency Services Research, Program Evaluation and Policy: Research to Inform the System Transformation Process; February 12- 14, 2006; Renaissance Harborplace Hotel, Baltimore, Maryland; in the President’s New Freedom Commission Report, the Commission recommends transforming how mental health care is delivered; system transformation is needed at many levels including individual consumers, mental health practitioners, service programs, provider agencies, public and private systems, and national levels; the methods used to achieve transformation at each level are different, yet the primary goal in a transformed system of care is that consumers can achieve recovery and resilience from mental illness; find conference information at http:// www. nri- inc. org/ Conference/ Conf06/ 2006agenda. cfm
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NEMA Mid- Year Conference; February 11- 15, 2006; Hilton Alexandria Mark Plaza, Alexandria, VA; forum provides an opportunity for National Emergency Management Association ( NEMA) conference participants to discuss challenges, share solutions, and network with peers; speakers will include those involved in shaping the future of homeland security and emergency management; for more information and on- line registration, go to http:// www. nemaweb. org
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Disability, Narrative and the Law; February 16- 17, 2006; Moritz College of Law, The Ohio State University, Columbus, OH; keynote address by Hon. Tony Coelho, Chairman of the Board, The Epilepsy Foundation, and former Member, U. S. House of Representatives; unique public interdisciplinary conference will draw together ADA News No. 142 January 23, 2006
researchers from law and the humanities to explore how themes of autonomy and dependency, “ normal” and “ abnormal,” innocence and fault, sameness and difference all play out in legal discussions about disability and in the self- understanding of persons with disabilities; conference information at http:// moritzlaw. osu. edu/ cilps/ conference/ dnl2006/ index. html
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UCP Central Pennsylvania’s Magic Night 2006: Cheers to 20 Years of Magic!; March 11, 2006; West Shore Country Club, Camp Hill, PA; twentieth anniversary of Magic Night, sponsored by Sovereign Bank; enjoy the sounds of The Chatterband as well as a silent and live auction, dinner and dancing; for more information contact Linda Bowen, Development Associate, at 717- 975- 0611 ext. 236
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Treating the Multiply- Disordered Suicidal Client; March 20- 21, 2006; Lancaster Host Resort, Lancaster, PA; emphasis of this workshop will be on suicide risk assessment and treatment of specific suicidal behaviors, including treatment planning, crisis management and procedures following suicidal behaviors; treating the therapist who works with the high risk, highly lethal clients will be discussed, as well as procedures following a client suicide; for more info, see http:// www. behavioraltech. org
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17th Annual National Service- Learning Conference: We The People; March 22- 25, 2006; Pennsylvania Convention Center, Philadelphia, PA; conference focuses on service- learning as a way of teaching and learning that builds academic skills and citizenship while addressing community needs in a real way; conference convenes teachers and other service- learning practitioners, administrators, educators of pre- service teachers, researchers, policy- makers, youth leaders, parents, program coordinators, national service members, community- based organization staffs, and corporate and foundation officers; The conference connects participants with service- learning leaders through three days of plenary sessions, featured forums, and service projects; more info at https:// programs. regweb. com/ metro/ NSLC2006
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UCP Philadelphia All Star Labor Basketball Classic; April 2, 2006; St. Joseph’s University, Philadelphia, PA; the best of the best senior high school basketball players ( boys and girls) will hit the courts in two “ city vs. suburbs” basketball games; exhibition game, area cheerleaders and dance teams, prize giveaways and more, n addition to benefitting children and adults with disabilities in the Greater Philadelphia area; for more information contact the Development Department at 215- 242- 4200, ext. 289 or e- mail seucp@ aol. com
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1st National Conference on Employment of Lawyers with Disabilities; May 22- 23, 2006; Renaissance Hotel Washington DC; sponsored by the American Bar Association’s Commission on Mental and Physical Disability Law, American Bar Association’s President Michael S. Greco and the United States Equal Employment Opportunity Commission; conference information forthcoming at http:// www. abanet. org/ disability/ events/ 06/ nationalconference/ home. html
ADA News No. 142 January 23, 2006
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2006 Joint National Conference on Mental Health Block Grant and National Conference on Mental Health Statistics: Sharing the KEYS: Knowledge to Empower You as a New Driver; May 30- June 2, 2006; The Renaissance Mayflower Hotel, Washington, DC; conference goal is to create a recovery and resiliency oriented care system focused on the goals of the consumer; attendees will be encouraged to dialogue about consumer- centered vs. consumer driven services; focus of the discussion will emphasize self determination and self direction around care quality and assessment; more information at http:// www. mentalhealth. samhsa. gov/ consumersurvivor/ listserv/ 120105. asp
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2006 UBS Motor Cars Under the Stars ( UCP Philadelphia benefit); June 5, 2006; Philadelphia Museum of Art, Philadelphia, PA; for more information regarding tickets or volunteer opportunities, please contact Willa Kravitz at ( 215) 248- 7609
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UCP Benefit Golf Tournament; June 26, 2006; North Hills Country Club, North Hills, PA; tournament brings together business representatives from across the Philadelphia area for a fantastic day of golf, fun, and food; for information, contact the Development Department at 215- 242- 4200, ext. 289 or email seucp@ aol. co
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14th Annual Outback Steakhouse UCP Charity Golf Classic; July 11, 2006; RiverCrest Golf Club & Preserve in Oaks, PA; for more information contact the Development Department at 215- 242- 4200, ext. 289 or email seucp@ aol. com
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National Cued Speech Association 2006 Annual Meeting: Celebrating Literacy, Excellence and Diversity; July 20- 23, 2006; Towson, MD; conference will focus on the latest research, emerging practices, and deaf perspectives; family- centered conference will feature presentations by parents and professionals, a children’s program, and events planned around special groups, such as fathers, deaf cue adults, signing cuers, grandparents, culminating with a 40th Anniversary Gala recognizing the significant accomplishments of people in the CS movement; more conference info at http:// www. cuedspeech. org
DISABLED RIDERS STRANDED BY DC METRO - The new company hired by Washington D. C. Metro to run MetroAccess, the curb- to- curb service that transports thousands of disabled passengers throughout the region, is having its problems getting started. A blind lung transplant patient was recently stranded by MetroAccess at work four nights in a row; sympathetic co- workers drove her home. A Maryland man in a wheelchair waited at a supermarket for four hours and called Metro 24 times before a MetroAccess ride finally appeared. A physician said three patients had trouble getting to or leaving his D. C. dialysis clinic because of mistakes by MetroAccess. And that was just the first week. “ You just stand on the line and it just rings and rings. What kind of a system is this? We're not selling shoes here. These are people!” said Jay Ocuin, a kidney specialist at Capital Dialysis on Q Street in Northeast Washington, who was so irate that he called MetroAccess to complain. For much of the week, a problem with the MetroAccess phone system left callers permanently on hold or listening to a busy signal. According to authorities, about 16,000 people in Washington and the surrounding area are registered to use MetroAccess. The Metro board chairman, T. Dana Kauffman, described the service problems as “ unconscionable” and said he would discuss the situation with the Metro staff. ADA News No. 142 January 23, 2006
NEW ACCESSIBILITY STANDARDS ADOPTED FOR FEDERAL FACILITIES - The General Services Administration ( GSA) has adopted new accessibility standards for federally funded facilities based on updated guidelines the U. S. Access Board issued in 2004. The adopted standards will apply to a wide range of new or altered buildings under the Architectural Barriers Act ( ABA), which requires access to facilities designed, built, altered or leased with Federal money. “ GSA was eager to adopt the new standards,” noted David L. Bibb, Acting GSA Administrator and Vice Chair of the Board, “ because they will ensure greater access to all types of Federal buildings while making compliance easier.” The standards apply to the design and construction of new facilities, altered areas of existing facilities, and leased facilities. As indicated in a notice GSA published in the Federal Register on November 8, the new standards will apply to construction and alterations that commence after May 8, 2006, and to leases entered into after this date. Compliance with the previous standards, the Uniform Federal Accessibility Standards, will be permitted for construction and alterations that begin before this date and for projects whose design is substantially complete by this date. As adopted by the GSA, the standards apply to all federally funded facilities, except residential, postal, and military facilities, which are covered by standards maintained by other Federal agencies. More information is available at http:// www. access- board. gov/ ada- aba.
AROUND THE WORLD - “ Focus on disabled players”: The Union of European Football Association's ( UEFA) contribution to the development of football [ i. e., soccer] for the disabled took its latest step with a meeting of the UEFA Disability Football Panel in Nyon, France January 17th. The Disability Football Panel comprises experts in the special field of disability football. Its objectives are to provide expert advice on disability football to UEFA, associations, clubs, and other agencies. European football's governing body has already demonstrated its backing for this vital grassroots sector through its partnership with the Special Olympics organization. Read more at http:// www. uefa. com/ uefa/ Keytopics/ kind% 3D32768/ newsId% 3D385807. html? cid= ss2005.
EMERGENCY PREPAREDNESS AND RESPONSE - On Friday, December 16, 2005, Senator Tom Harkin ( D- IA) introduced Senate Bill 2124, the Emergency Preparedness and Response for Individuals with Disabilities Act of 2005. The proposed legislation will address the needs of individuals with disabilities in emergency planning and relief efforts. “ Hurricane Katrina’s aftermath has shown us that we need to have a better emergency response plan, especially one that includes preparations for assisting people with disabilities,” said Harkin. “ This bill is an important step to ensure that the needs of disabled Americans will be addressed in case of an emergency.” Under this legislation, a Disability Coordinator would be created in the U. S. Department of Homeland Security, who will report directly to the Secretary. The Coordinator would be responsible for working with local, state and federal authorities about the needs of individuals with disabilities in emergency planning and relief; developing a curriculum for first responder training on the needs of individuals with disabilities; ensuring telephone hotlines and websites containing information about evacuations are accessible; and providing guidance about the rights of individuals with disabilities regarding post evacuation residence and relocation, among other things. The act will also require that 30 percent of temporary housing for disaster victims be accessible, and usable by individuals with disabilities, and would provide ADA News No. 142 January 23, 2006
incentives to create more accessible housing during reconstruction efforts. Senator Harkin, a chief sponsor of the ADA, is a longstanding advocate for individuals with disabilities in the U. S. and has worked to call attention to disability rights. S. 2124 was referred to the Senate Committee on Homeland Security and Governmental Affairs.
TOP DISABILITY STORIES OF 2005 - Dave Reynolds, editor of the Inclusion Daily Express, has listed the top international disability news headlines of 2005 as voted by the readers. Stories noted include Terri Schiavo, and the effect on the disabilities community of Hurricanes Katrina and Rita. Find them and others online at http:// www. inclusiondaily. com/ news/ top2005. htm.
NCD STUDY - The National Council on Disability is currently conducting a study to gather information from a wide range of sources regarding the issues that persons with disabilities encounter in seeking and maintaining employment. The Rutgers University Program for Disability Research is facilitating this discussion for the NCD via an online bulletin board. The Rutgers University Program invites interested persons to participate in a discussion of important issues facing persons with disabilities who are working or who want to work. The purpose of this online discussion is to inform policy and program recommendations for employment opportunities for individuals with disabilities. Participation is entirely voluntary, and participants can choose whether they want to read information, respond to issues, or raise issues on this online discussion. This online discussion is located at http:// www. ncdadaemploymentstudy. com.
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 the recent Pittsburgh Area Employment Seminar.
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The December 2005 edition of the newsletter of the National Center on Physical Activity and Disability ( NCPAD) includes articles about sports, athletics and people with disabilities. The monthly newsletter is available by free subscription, and on the web at http:// www. ncpad. org/ newsletter/ newsletter. php? letter= 47.
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The November edition of the National Council on Disability Monthly Bulletin is available online at http:// www. ncd. gov/ newsroom/ bulletins/ 2005/ b1105. htm.
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Lessons in Employee Leave, an article from Professional Roofing webzine, discusses the application of the Family and Medical Leave Act ( FMLA), the ADA, workers' compensation laws, and company policy. Http:// www. professionalroofing. net/ article. aspx? A_ ID= 785
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Issue No. 10 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/ newsltr1005. htm; the ADA News No. 142 January 23, 2006
December 2005 issue highlights equal access to medical services and public transportation, DOJ settlements, and ADA medication; the newsletter is available at http:// www. justice. gov/ crt/ ada/ newsltr1005. htm
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DHS Preparedness Directorate Information Bulletin 197 - On November 23, 2005 the Preparedness Directorate of the Department of Homeland Security issued an Information Bulletin to all State Homeland Security Directors, State Administrative Agency Heads, State Administrative Agency Points of Contacts, and Urban Area Core City/ Core County Points of Contact that incorporated much of the input on planning issues pertaining to special needs population and individuals with disabilities provided by The Office for Civil Rights and Civil Liberties (“ CRCL”). State and urban areas/ major cities must conduct self- assessments using guidelines in Information Bulletin 197. Participation is a prerequisite for receipt of FY2006 DHS Homeland Security Grant funds. The self- assessment phase of the review process will be followed by on- site Peer Review visits to validate results and corrective action plans. As recommended by CRCL, An ADA Guide for Local Governments: Making Community Emergency Preparedness and Response Programs Accessible to People with Disabilities is listed among the suggested references. Preparedness Directorate Information Bulletin 197 is available at: http:// www. ojp. usdoj. gov/ odp/ docs/ info197. pdf. Interested persons may contact Megan Hogan either by telephone ( 202) 401- 2569 or via email megan. hogan@ associates. dhs. gov for a WORD version of this Bulletin.
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Emergency Evacuation of People with Physical Disabilities from Buildings: 2004 Conference Proceedings is an accessible version of a report summarizing the deliberations and recommendations of an Interagency Subcommittee on Technology workshop held October 13- 14, 2004. The two- day workshop provided a forum for discussion on research recommendations to improve available data, building and life safety codes, evacuation technologies and evacuation practices for people with physical disabilities.
LAWMAKER IN WHEELCHAIR UNABLE TO EVACUATE CAPITOL - A false alarm at the Iowa Statehouse January 18th is causing alarm for people with disabilities. A possible fire set off the emergency alarms at the Statehouse. There was no fire, but it now has one legislator who uses a wheelchair calling for a review of the building's compliance with the ADA. Representative Mark Kuhn, of Charles City, was meeting with members of Easter Seals talking about ways to help farmers with disabilities when the alarms sounded and he was in need of some help of his own. “ I was right next to the handicap- accessible elevator and the doormen told me I could not use that elevator to evacuate the building so I asked them, ‘ How am I going to get out?’” Kuhn said. In a building full of stairs, Kuhn had few options. He was told he could wait and see if the threat was serious or he could have a couple of state troopers haul him out on a gurney. “ I wasn’t looking forward to being hoisted into a gurney due to my condition and carried down the steps, even thought that might be the only way I could get out of there,” Kuhn said. Kuhn is calling for an immediate review of the state’s emergency evacuation policies. “ If the doormen in the house don’t know and the highway patrol is unsure what to do with someone, you really start to wonder about the safety of people with disabilities in the Capitol,” Kuhn said. Kuhn is also sponsoring a bill to examine all state buildings to see if they are up to code and ADA News No. 142 January 23, 2006
compliant. “ It’s high time that we review our plans for ADA compliance and this bill request will ask for an estimate to be made to determine what the cost would be to bring us up to ADA compliance certainly that’s a cost that the state needs to bear,” Kuhn said. According to Capitol procedures, all elevators must be sent to the first floor for use by firefighters. The plans also call for a complete evacuation, even during false alarms. Kuhn said few people actually evacuated the building.
KATRINA FOLLOW- UP - On December 13th, the U. S. House Committee on Ways and Means Subcommittee on Oversight conducted a hearing to review the response by charities to Hurricane Katrina. The hearing focused on relief services provided by charitable organizations and explored areas where service delivery, preparedness, and coordination could be improved. The witness list and testimony are available at http:// waysandmeans. house. gov/ hearings. asp? formmode= detail& hearing= 455.
On December 29th, the National Organization on Disability ( NOD) released a Harris Interactive survey that states that emergency preparedness in the workplace is on the decline, but personal preparedness for people with disabilities is on the rise. The survey also found that while 12 percent of those without disabilities report less anxiety about their personal safety since 2001, the disability community has not experienced a comparable decline. This new survey goes on to report a marked decrease in workplace preparedness for people with disabilities. Survey results reveal that 57 percent of people with disabilities indicate that they have a workplace plan, down from 68 percent in 2003. Areas of concern for the NOD include statistics surrounding the effort of federal, state, and local government, as well as corporations to prepare people with disabilities for emergencies. Sixty- three percent of people with disabilities believe that the federal government is doing a fair or poor job at preparing them for disasters, while 61% for state government and 59% for local government are both doing fair or poor jobs to prepare people with disabilities. Corporations and business were not immune to strong scrutiny. Sixty- one percent of people with disabilities felt corporations were doing only a fair or poor job of preparing the disabled population for disaster response. The Emergency Preparedness Initiative (“ EPI”), organized immediately after the 9/ 11 terrorist attacks, is designed to help communities, emergency planners and responders, and people with disabilities properly prepare for all man- made and natural disasters. EPI is working with the U. S. Department of Homeland Security, FEMA, other government agencies, emergency planners and responders, and the disability community to ensure that adequate plans are in place to accommodate the needs of people with disabilities during future crises. For more information from the NOD on emergency preparedness for persons with disabilities, go to the Emergency Preparedness Initiative website.
LEX FRIEDEN: PREPARED FOR DISASTER by Roxanne Furlong - “ During the immediate days following the destruction of Hurricane Katrina, a dedicated group of individuals, led by Lex Frieden, director of Independent Living Research Utilization in Houston, Texas, set up a phone- in clearinghouse to help storm victims with disabilities. Frieden's own experience during Tropical Storm Allison in 2001 had prepared him for this critical moment. He was keenly aware of the need for shelter, equipment, medical attention and nourishment that thousands of people with disabilities from the Gulf Coast were experiencing. He also knew how to lead, having held numerous key positions, including senior vice president of The Institute for Rehabilitation and Research; first director and current chair of the National ADA News No. 142 January 23, 2006
Council on Disability; co- author of the national policy that became the Americans with Disabilities Act; and past president of Rehabilitation International. But it is as director of ILRU that Frieden jumped into action to assist independent living centers and individuals with disabilities in the devastated region. In doing so, he helped thousands of people and earned the gratitude and respect of the disability community. That is why New Mobility is pleased to honor Lex Frieden as our Person of the Year.” Http:// www. newmobility. com/ review_ article. cfm? id= 1097& action= browse
AMC ORDERED TO UPGRADE SEATING - AMC Entertainment Inc., the nation’s second- largest movie theater chain, was ordered to upgrade seating for patrons in wheelchairs at 1,200 of its stadium- style movie auditoriums and pay $ 300,000 in penalties and civil damages to settle a U. S. Title III lawsuit. Justice Department officials announced January 11th that the order settles its 1999 lawsuit against the company claiming AMC violated the ADA because it doesn’t provide comparable seating for people in wheelchairs. The Kansas City- based company also must ensure that all theaters built over the next five years comply with requirements set out by U. S. District Judge Florence- Marie Cooper in Los Angeles. As part of the order, privately held AMC, which operates more than 3,300 screens, must build ramps in more than 360 theaters, providing wheelchair spaces on higher seating tiers. The company also must pay $ 200,000 to theatergoers who originally complained to the Justice Department about the seating arrangements and $ 100,000 in fines. “ Providing the same moviegoing experience for individuals in wheelchairs that other patrons enjoy delivers on the promise of the ADA,” Assistant Attorney General Wan J. Kim said in a release. “ These improvements will make the goals of the ADA a reality for thousands of Americans who want to enjoy this popular form of entertainment.” AMC announced January 12TH that it will appeal the ruling.
SETTLEMENT AGREEMENT BETWEEN DOJ AND TICKETMASTER - The U. S. Department of Justice, Civil Rights Division has reached a settlement agreement with Ticketmaster regarding various aspects of their business practices. Among other things, the Agreement requires Ticketmaster to make adjustments in the manner in which it handles ticket purchases, especially with regard to accessible seating. A copy of the settlement agreement can be viewed on- line at http:// www. ada. gov/ ticketmaster. htm.
US CHAMBER OF COMMERCE POSTS CASE STUDIES - The U. S. Chamber of Commerce has posted case studies from local Chambers who have been involved in efforts to increase the employment of people with disabilities. Finding and keeping good workers are among the greatest challenges facing businesses in the 21st century. People with disabilities are a source of qualified workers that is frequently overlooked. This pool of workers represents one of the largest groups seeking employment in today’s market - some 9 million unemployed Americans with significant disabilities want to work. Case studies of local chambers meeting the needs of their business members available online include the Brooklyn ( NY) Chamber of Commerce, the Chattanooga ( TN) Area Chamber of Commerce, the New Bedford ( MA) Area Chamber of Commerce, and the West Suburban ( LaGrange, IL) Area Chamber of Commerce and Industry. The information can be viewed on the U. S. Chamber of Commerce web site at http:// www. uschamber. com/ cwp/ strategies/ disabilities/ disabilitycasestudies. htm.
COMING UP NEXT MONTH - February we observe AMD/ Low Vision Awareness Month, American Heart Month, Kids E. N. T. ( Ears, Nose, Throat) Month, Black History Month, National Children’s Dental Health Month, and Wise Health Care Consumer Month; February 1- 7 is National Patient Recognition Week, 5- 11 is National Burn Awareness Week, 6- 10 is Pride in Food Service Week, 7- 14 is Congenital Heart Defect Awareness Week, 12- 18 is Cardiac Rehabilitation Week, Cardiovascular Professionals Week, National Condom Week, National Heart Failure Awareness Week, National Children of Alcoholics Week, Duchenne Muscular Dystrophy Awareness Week and National Child Passenger Safety Awareness Week, 19- 25 is National Porphyria Week, the February 26 - March 4 is National Eating Disorders Awareness Week; February 1st is Women's Heart Health Day and National Girls and Women in Sports Day, the 3rd is Give Kids A Smile Day, National Patient Recognition Day and National Wear Red Day ( Heart Disease), the 14th ( Valentine’s Day) is National Condom Day, National Have- A- Heart Day, Congenital Heart Defect Awareness Day and National Donor Day, the 17th is National Women’s Heart Health Day.
ADA News No. 142 January 23, 2006
ADA News No. 144 February 27, 2006
ADA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 144February 2006
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.
FAULTY JURY INSTRUCTION BRINGS NEW TRIAL - In one of his last published opinions as a judge on the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI), Judge Samuel Alito wrote for the Court in ordering a new trial for a shipping and receiving clerk formerly employed by Burdette- Tomlin Memorial Hospital in Cape May Court House, NJ. The case involved the clerk’s charge that his employer had refused to accommodate his back and neck disability. The Court’s decision to grant the clerk a new trial hinged on its finding that a jury instruction given at the end of the trial may have erroneously shifted the burden, leading the jury to believe that the clerk had the burden to identify a specific accommodation instead of merely identifying “ an accommodation” as required by the Act. “ Because the district court did not require the defendants to satisfy this burden - and therefore the jury was not properly instructed that the defendants’ belief that [ the clerk] could not do the job because of his physical limitations had to be reasonable and that the burden of proving this was on the defendants - we reverse and remand for a new trial of [ his] disability discrimination claim,” Judge Alito wrote. Although the unanimous opinion expresses some doubt as to whether the clerk could eventually prove the other elements of his claim, it was not so clear on his ADA claim as to call the incorrect instruction harmless error. Armstrong v. Burdette Tomlin Memorial Hospital, CA3, No. 03- 3553, 1/ 30/ 06 ( http:// www. ca3. uscourts. gov/ opinarch/ 033553p. pdf).
STATES LAGGING ON VOTER ACCESSIBILITY - With a suspenseful round of congressional elections just nine months away, about half of the states have failed to fully comply with federal mandates under the Help America Vote Act, an electoral watchdog group said earlier this month. Most states have made clear progress toward upgrading voting procedures. But delays in some states - or in some instances, counties - and a massive transition to new machines could spark election challenges in close contests, according to Electionline. org, a nonpartisan group that tracks election reform. “ The possibility for error, and the willingness of people to challenge those errors, are both growing every day. And that could have tremendous impact on elections in 2006 and ADA News No. 144 February 27, 2006
beyond,” said Doug Chapin, director of the group. Meanwhile...
DOJ THREATENS NEW YORK OVER VOTING MACHINES - The Department of Justice is threatening to sue New York State over delays in bringing new voting machines to the state and complying with other Help America Vote Act ( HAVA) requirements. Wan Kim, assistant attorney general in the DOJ’s Civil Rights Division, wrote the state’s Board of Elections and its Attorney General Eliot Spitzer because the state is lagging behind every other state in complying with HAVA requirements. New York received $ 220 million in federal funds to help comply with HAVA requirements, but said it will likely need until 2008 to comply with HAVA’s disability provisions. Kim’s letter can be read online at http:// www. votetrustusa. org/ pdfs/ New% 20York/ doj_ letter. pdf.
SCHOOL JANITOR WITH EPILEPSY WILL GET HER DAY IN COURT - Judge Joyner of the U. S. District Court for the Eastern District of Pennsylvania denied summary judgment to the Bristol Township School District in an ADA lawsuit brought by a school custodian with epilepsy who claims that she was denied permanent employment because of her disability or because she was regarded by the district as having a disability. The plaintiff, who had worked regularly as a substitute custodian for the district since 1999, was denied a permanent position despite applying for approximately 30 permanent part- time custodian positions in that period. The custodian sued under the ADA and the Pennsylvania Human Relations Act ( PHRA), and was granted a right to sue. The school district moved to dismiss the suit. In a good discussion of the requirements for summary judgment and the elements of an action under the ADA, Judge Joyner found that the custodian was a qualified person who had an impairment, and that whether her epilepsy was a disability under the Act is a question of fact, making the case inappropriate for summary judgment. Applying the McDonnel Douglas test to her “ regarded as” claim, the court also found sufficient evidence that the district regarded the custodian as a person with a disability to withstand summary judgment. [ This is a very good analysis of an ADA claim in only seventeen pages. - Ed.] Bley v. Bristol Township School District, USDCt. EDPa. No. 05- CV- 0029, 1/ 25/ 06 ( http:// www. paed. uscourts. gov/ documents/ opinions/ 06D0092P. pdf).
RETALIATION RULING BASED ON ‘ PROTECTED ACTIVITY’ - Another instructive read is the opinion of Judge Stengel also of the U. S. District Court for the Eastern District of Pennsylvania in denying summary judgment in a case involving the termination of a certified nurse’s assistant. The nurse’s assistant, who worked at the Good Shepherd Home in Allentown, PA, had a history of experiencing anxiety, depression and vertigo, of which her management was aware. In her fourth year of employment, and after working two consecutive shifts, the nurse’s assistant inadvertently took an anti- seizure prescription medicine issued for her husband and, after subsequently taking ibuprofen for a headache, she passed out at work. When informed by the assistant’s doctor that she was able to return to work, management informed her that she had been terminated because she had been “ sleeping on duty and had intentionally taken medication not prescribed to her, for mental health reasons, and for ‘ being out on leave.’” She sued under the ADA and PHRA charging a violation of the acts and retaliation. The court denied the Home’s motion for summary judgment, finding in part that requesting an accommodation under the ADA was “ protected activity” and, thus, any adverse action taken by the home that had been ADA News No. 144 February 27, 2006
precipitated by such request would be retaliation. [ Really, you have to read it to get the full flavor of this. - Ed.] Kaniuka v. Good Shepherd Home, USDCt. EDPa. No. 05- CV- 02917, 11/ 3/ 06 ( http:// www. paed. uscourts. gov/ documents/ opinions/ 05d1358p. pdf).
DISABILITIES WEBSITE OF THE MONTH - Sport Italia, Eurosport and RAI ( the Italian broadcasting network) have displayed their commitment in supporting the Torino 2006 Paralympic Winter Games. The events for people with a disability held from March 10th to the 19th will see 600 athletes from 41 countries competing in 5 disciplines ( Alpine skiing, Nordic skiing, biathlon, ice- sledge hockey and wheelchair curling). The official website of the Tourino Paralympics gives you a calendar of events, the official Olympics store and up- to- the- minute news for all of us who just can’t get enough of the Olympic spirit. Don’t let the Olympic flame go out on February 26th! Http:// www. paralympicgames. torino2006. org
EVIDENCE OF DIABETES WITHOUT MORE INSUFFICIENT - A postal employee with diabetes sued her employer under the Act for discrimination and retaliation. The U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) , in a per curiam opinion, agreed with the employer that she had failed to prove that she was a person with a disability. In assessing the employee’s claims, the Court said, “ her condition has no significant effect on her diet: it merely requires her ‘ to watch what she eats more carefully,’ have a snack if her blood sugar is low, and take insulin if it becomes too high. [ The employee] has been hospitalized because of diabetes three times in fifteen years, and she claims that she ‘ came close to passing out’ while on the job just once, over five years.” Since she had failed to present facts sufficient to convince a reasonable jury of her disability, the employee’s claim failed. In addition, the Court found that, even had she proved the existence of a disability, her employer had offered several “ accommodations” that could have addressed whatever workplace problems her diabetes presented. Schultz v. Potter, CA3, No. 04- 4227, 8/ 4/ 05 ( http:// www. ca3. uscourts. gov/ opinarch/ 044227np. pdf).
AREA CALENDAR -
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The Road Home: National Behavioral Health Conference on Returning Veterans and Their Families; March 16- 18, 2006; Washington Hilton Hotel, Washington, DC; conference will give Federal, State, and local public and private service providers evidence- based information and approaches that can help veterans and families build resiliency to prevent and treat mental health disorders ( including Post- Traumatic Stress Disorders), substance abuse disorders, suicide, and/ or co- occurring disorders; for more information, contact Andrea Vincent, CRP, Incorporated’s Returning Veterans Conference Logistics Coordinator, at ( 202) 362- 0691, or toll- free at 1- 866- 277- 4772, or visit the conference website at http:// www. palmergroup. biz/ RVI/ VetsInfoPg. asp
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Assessment of Adolescent and Adult Depression; March 16- 17, 2006; Holiday Inn Charleston House, Charleston, WV; workshop will provide in- depth, intensive examination of symptoms and theories of depression and a variety of standardized assessment instruments for mood disorders and suicide risk will be discussed; participants will apply learned information using clinical cases to sharpen and ADA News No. 144 February 27, 2006
practice clinical assessment skills; more information from Mike Slaughter, Suicide Prevention Coordinator ( 304) 296- 1731 ext 4197, or at sslaughter@ valleyhealthcare. org
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Treating the Multiply- Disordered Suicidal Client; March 20- 21, 2006; Lancaster Host Resort, Lancaster, PA; workshop is for those who want to learn the principles and specific protocols in DBT for working with clients who engage in suicidal behaviors; emphasis of workshop will be on suicide risk assessment and treatment of specific suicidal behaviors, including treatment planning, crisis management, and procedures following suicidal behaviors; treating the therapist who works with the high risk, highly lethal clients will be discussed, as well as procedures following a client suicide; information at http:// www. behavioraltech. org/ events/ details/ Lancaster_ 03202006. html
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17th Annual National Service- Learning Conference: We The People; March 22- 25, 2006; Pennsylvania Convention Center, Philadelphia, PA; conference focuses on service- learning as a way of teaching and learning that builds academic skills and citizenship while addressing community needs in a real way; conference convenes teachers and other service- learning practitioners, administrators, educators of pre- service teachers, researchers, policy- makers, youth leaders, parents, program coordinators, national service members, community- based organization staffs, and corporate and foundation officers; conference website at https:// programs. regweb. com/ metro/ NSLC2006
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Macy's Shop For A Cause; March 25, 2006; Pittsburgh, PA; event gives shoppers the opportunity to access special sales and use special coupons, while the proceeds of tickets sales benefits UCP of Pittsburgh; this day of special savings benefits local non- profit organizations when you purchase a $ 5 donation ticket; shop anytime between 9 am and 10 pm at any local Macy's stores; with the purchase of the ticket, receive the following opportunities: $ 10 off a $ 20 purchase, all- day 20% or 15% off shopping pass, entry into a drawing for a $ 500 shopping spree, and great all- day specials; many of the local Macy's stores have light refreshments, fabulous prizes and special events; to purchase your ticket, contact Marci Sloan at 412- 683- 7100 ext. 337 or by email at msloan@ ucppittsburgh. org
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Let Your Child Be Heard - a “ UCP Cares” Workshop; March 29, 2006; Spina Bifida Association, Wexford, PA; how children can and should be involved in their own Individual Education Plan ( IEP) process; contact Becky Karns at 412- 697- 7434 ext 113 for more information
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Hanover Child Development Group Yard Sale; 3: 00 PM, April 28, 2006; UCP Hanover, PA; UCP’s Child Development Group will be hosting a yard sale to raise money to support the Child Development Group; donations of gently used toys, children’s clothing and household items are being accepted ( please, no adult clothing); bring items to the UCP Hanover office from January 16th through April 21st, or set up your own table ($ 10.00); all money raised through this fundraiser benefits ADA News No. 144 February 27, 2006
the children who attend the Cherry Tree Kids Child Development Group
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3rd Annual Stroll ' n Roll for Spina Bifida; May 7, 2006; Spruce Run Recreation Area, Clinton, NJ; open to all walkers and wheelers, a community event for the whole family; funds raised will go to providing services for children, adults and families living with spina bifida, and to educate the public on the prevention of spina bifida; information from Jennifer Guercio, 908- 782- 7475, info@ sbatsr. org, or at http:// www. sbatsr. org
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UCP 5K Corporate Run/ Walk - May 18, 2006; Philadelphia Museum of Art, Philadelphia, PA; meeting on the steps of the Philadelphia Museum of Art for a 5 kilometer ( 3.1 mile) race along MLK ( formerly West River) Drive; team event is open to runners and walkers of all levels employed by the same company, attending the same school, or members of the same group or club; for more information, contact the Development Department at 215- 242- 4200, ext. 289 or email seucp@ aol. com
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Highmark’s 4th Annual Walk For A Healthy Community; 9: 00 AM, May 20, 2006; Chevrolet Amphitheatre, Station Square, Pittsburgh, PA; as one of the organizations participating in the walk, UCP of Pittsburgh will receive 100% of all donations it raises; register online at http:// www. walkforahealthycommunity. org; for further information on how this walk benefits UCP of Pittsburgh, how to create a team to walk on the behalf of UCP of Pittsburgh, or other ways you can assist, contact Marci Sloan at 412- 683- 7100 ext. 337 or by e- mail at msloan@ ucppittsburgh. org
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Keep Up The Momentum! - a “ UCP Cares” Workshop; May 31, 2006; Shadyside, ( Pittsburgh) PA; contact Becky Karns at 412- 697- 7434 ext 113 for information
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UCP Ducky Derby; June 1- July 29, 2006; Hanover, PA; United Cerebral Palsy of South Central PA and the Hanover Kiwanis are once again sponsoring the Ducky Derby held during Hanover’s Dutch Days; money raised through this fundraiser helps children in the Hanover area; during the months of June and July, UCP and Kiwanis will be selling ducky adoption certificates; each duck adopted gets the owner one chance in the derby; top ducks to cross the finish line during Hanover Dutch Days wins great prizes; individual ducks are $ 3.00 each, or two ducks for $ 5.00; flocks of ducks are available as well - 25 ducks for $ 50.00; for more information on how to adopt your duck, contact Christina Stetler at 632- 5552 x. 41 or cstetler@ ucpsouthcentral. org
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National Conference on Depression and Suicide; June 22- 23, 2006; Charleston Civic Center, Charleston, WV; national speakers and state experts will speak and present workshops on such topics as depression, serotonin and suicide, survivors of suicide and the role that addiction often plays in suicide; more information from Bob Musick, Executive Director of the WV Council for the Prevention of Suicide ( 304) 296- 1731 ext 4181, or bmusick@ valleyhealthcare. org ADA News No. 144 February 27, 2006
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Foster Family- based Treatment Association ( FFTA) 20th Annual Conference on Treatment Foster Care; July 16- 19, 2006; Omni William Penn Hotel, Pittsburgh, PA; only North American- based conference on treatment foster care designed for anyone involved in the provision of treatment foster care services or who has an interest in the field, including CEOs, senior managers, clinicians, supervisors, researchers, administrative staff, case managers, foster parents, line staff, social work professors and students; conference info at http:// www. ffta. org/ conference/ index. html
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Expanding Capacity, Realizing Outcomes: Pennsylvania Community on Transition Conference; July 18- 21, 2006; Penn Stater Conference Center, State College, PA; primary purpose of conference is to expand the capacity of community partners in promoting the successful transition of youth/ young adults with disabilities to post- school outcomes of employment, post- secondary education and training, community participation and healthy lifestyles; participants will have the opportunity to learn new information about successful practices to assist youth/ young adults with disabilities in achieving successful post- school outcomes; participants will obtain new ideas from other practices, and have the opportunity to listen, share information and network; for more information, contact Joan Kester ( 717) 787- 6695 or Michael Stoehr ( 412) 826- 6864 or http:// www. pattan. net/ files/ Flyers06/ TransConf06. pdf
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84 Lumber Golf Classic; September 14- 17, 2006; Nemacolin Woodlands Resort, Farmington, PA; UCP of Pittsburgh is proud to be a partner with other non- profit organizations in the Pittsburgh Region to offer special charity tickets to this year’s 84 Lumber Golf Classic; purchase your ticket from UCP of Pittsburgh at the special price of $ 15 before July 31, 2006 and proceeds will be used to support programs operated by UCP of Pittsburgh; better yet, purchase 4 tickets at the price of $ 50; to purchase tickets, contact Marci Sloan at 412- 683- 7100 ext. 337 or by email at msloan@ ucppittsburgh. org
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Fun for Everyone! - a “ UCP Cares” Workshop; October 27, 2006; Rodef Shalom, Shadyside ( Pittsburgh), PA; one- day conference specifically for recreation providers to equip them with strategies on how to welcome all children into their recreation and leisure programs; contact Becky Karns at 412- 697- 7434 ext 113 for details
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World Congress on Disabilities; November 17- 19, 2006; Pennsylvania Convention Center, Philadelphia, PA; over 200 exhibitors displaying the latest products and services that are improving the lives of those with disabilities; info at http:// www. wcdexpo. com
DISABILITY NEEDN’T BE SOLE REASON FOR NON- HIRE - When an applicant tries to prove discrimination based on disability with direct evidence such as an interviewer’s comments, the individual need only offer proof that the employer relied on the disability - or perceived disability- in making the challenged employment decision, the U. S. Court of Appeals for the Sixth Circuit ( MI, OH, KY, TN) has held. The person does not have to prove ADA News No. 144 February 27, 2006
that the disability was the sole reason for the adverse action. In 1992, a former police officer was granted a disability pension from Cincinnati, due to degenerative disc disease resulting from his employment. In 1996, the former officer applied for a city firearms instructor position, but was turned down. The individuals who interviewed him later testified that they assumed that, based on his back problem, he would be unable to do the lifting required for the job. One decision- maker asked in the interview, “ how can you go out [ on a disability pension] with a back injury … then come back now and say you can pick something up that was, you know, fairly heavy?” The decision- makers sought no additional information from the officer, nor did they discuss with him his ability to undertake the essential functions of the position. When he was turned down for the job, the officer sued under the ADA, alleging that the police officials refused to hire him because they regarded him as disabled. The lower court granted summary judgment for the city, but the Appellate Court reversed. Reversal was based largely on the decision- makers’ comments about the officer’s back injury and about his perceived inability to lift fairly heavy objects. The Court held that such testimony created direct evidence of discrimination that allowed the case to go forward to trial. The ultimate lesson in this case is that statements by decision- makers regarding their own assumptions about an applicant’s perceived impairments or limitations can form the basis of legal liability under the “ regarded as” prong of the ADA. Topics for discussions with an applicant should be limited to the essential job functions for which he or she has applied, and the applicant's ability to meet those qualifications, with or without accommodation. Anything else may form the basis of a claim of discriminatory treatment. Todd v. City of Cincinnati, CA6, No. 05- 3343, 2/ 3/ 06 ( http:// www. ca6. uscourts. gov/ opinions. pdf/ 06a0046p- 06. pdf).
AROUND THE WORLD ( from DisabilityWorld. org) - “ Poverty, Disability, and Development Aid in Economically Weaker Countries: trends, critique, and lessons usually not learnt - When broad and contested terms like ' poverty' and ' disability' meet, simplistic slogans soon arise ( e. g. " Disabled People are the Poorest of the Poor") to remove the need for careful thinking. Most people will agree that poverty and disability are often linked; yet most poor people do not think of themselves as disabled, and many disabled people are not poor. Careful thinking and research are still needed.”
RAMP SOUGHT AT POST OFFICE ( from the New Jersey Express Times) - Ralph and Deanna Keyser, of Washington Township, have pushed to make the Bangor [ NJ] post office handicapped accessible for several years. But updating the building isn't so simple. Http:// www. nj. com/ news/ expresstimes/ pa/ index. ssf?/ base/ news- 4/ 1139220436175710. xml& coll= 2
EMERGENCY PREPAREDNESS LEGISLATION PROPOSED - Legislation offering a comprehensive approach to ensuring that the needs of people with disabilities are met before, during and after a national disaster has been proposed by Representatives Jim Langevine, ( D- RI) and Curt Weldon ( R- Pa). “ The Emergency Preparedness and Response for Individuals with Disabilities Act “ ( H. R. 4704) would establish a Disability Coordinator within the Department of Homeland Security ( DHS). The Disability Coordinator would be appointed by the Secretary after consultation with organizations representing individuals with disabilities, and report directly to the Secretary. The Disability Coordinator would be ADA News No. 144 February 27, 2006
responsible for providing guidance and coordination in emergency planning and relief efforts. The Bill has been referred to the House Committee on Transportation and Infrastructure and the Committee on Small Business.
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 2006 edition of OVeRVIEW, the monthly magazine of the Pennsylvania Department of Labor and Industry, Office of Vocational Rehabilitation ( OVR), features an article about the relationship between OVR and its stakeholders.
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Issue No. 11 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. ada. gov/ newsltr0206. htm; the February 2006 issue highlights improved access to performance venues, housing and service stations, DOJ settlements, and ADA medication.
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The January 2006 edition of the newsletter of the National Center on Physical Activity and Disability ( NCPAD) includes articles about sports, athletics and people with disabilities. The monthly newsletter is available by free subscription, and on the web at http:// www. ncpad. org/ newsletter/ newsletter. php? letter= 48.
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The December 2005 edition of the National Council on Disability Monthly Bulletin is available online at http:// www. ncd. gov/ newsroom/ bulletins/ 2005/ b1205. htm.
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Volume 3, Issue 4 of the Job Accommodation Network’s Consultant’s Corner discusses the issue of Requesting and Negotiating a Reasonable Accommodation at http:// www. jan. wvu. edu/ corner.
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The February edition of the bi- monthly newsletter of the ADA& IT Information Center for the Mid- Atlantic Region, is available on line at http:// www. adainfo. org/ whatsnew, with disability- related resources, news, and many other items of interest.
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Volume 3, Issue 4 ( Fourth Quarter 2005) of E- News, the newsletter of the Job Accommodation Network ( JAN) is now available online at http:// www. jan. wvu. edu/ enews/ 2005/ Enews_ V3- I4. htm. Featured articles include Managing Temperature Sensitivity in the Workplace and Tips for Locating a Business Mentor.
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JAN ACCOMMODATION AND COMPLIANCE AUDIO/ WEB TRAINING SERIES - This series unites national experts on job accommodation and disability employment law to provide one- hour training opportunities via audio conferences and Webcasts in 2006. The Accommodation and Compliance Training Series provides a convenient opportunity for human resource managers, compliance officers, disability and ADA News No. 144 February 27, 2006
diversity managers, and other professionals to discover ways to enhance an organization’s ability to accommodate and employ people with disabilities. Sessions begin March 14th with “ Disability Etiquette in the Workplace,” and continue through November. Courses cost $ 25 per session per telephone line, regardless of the number of people listening in. Series information at http:// www. jan. wvu. edu/ teleconf/ Teleconf. htm.
IS YOUR WEIGHT ROOM ACCESSIBLE? - A handful of new gyms are going out of their way to assist patrons with physical disabilities with wheelchair- accessible equipment. Disabilities advocates say that health clubs are among the last places to become accessible to people who are blind, deaf or use a wheelchair. Read how that is changing in the New York Times at http:// www. nytimes. com/ 2006/ 02/ 09/ fashion/ thursdaystyles/ 09Fitness. html? ex= 1140152400& en= 056e4aacb75f6e02& ei= 5070& emc= eta1.
INABILITY TO DRIVE - A vehicle emissions compliance supervisor with a visual impairment lost his claim for failure to accommodate against the Illinois Environmental Protection Agency when the U. S. District Court for the Northern District of Illinois found that the ability to drive was an essential function of his job. The supervisor argued that driving was only a marginal function of his position. The court, however, found that driving constituted twenty percent of his job, and that he averaged approximately 1700 miles per month and several hours per day on the road. The EPA’s designation of driving as an essential job function was bolstered by evidence that a drivers license was required of all supervisors. Kielbasa v. Illinois Environmental Protection Agency, USDCt ND Ill., No. 02- C4233- 2, 11/ 3/ 05.
TARGET WEBSITE SUBJECT OF LAWSUIT - A lawsuit filed this month in Oakland, California claims that the Web site of one of the nation’s largest retailers is inaccessible to the blind and so violates state and federal law. Target's site lacks “ compliant alt- text,” an invisible code embeddedbeneath graphic images that lets screen- reading software detect and vocalize an image’s description to blind computer users, according to the suit filed by Disability Rights Advocates for the National Federation of the Blind, its California affiliate and a blind man from Berkeley. Target’s site also contains inaccessible image maps, keeping blind users from jumping to different areas within the site, the suit says. Because the site requires use of a mouse to finish a transaction, blind Target customers cannot buy from the Web site without another person’s help. Blind users also cannot find corporate information such as employment opportunities, investor news and company policies, the suit adds. “ I want to be able to shop online at Target. com just like anyone else,” plaintiff B. J. Sexton, a University of California, Berkeley student and president of the California Association of Blind Students, said in a news release. “ I believe that millions of blind people like me can use the Internet just as easily as do the sighted, if the Web site is accessible.”
EMPLOYERS UNPREPARED FOR DISABLED VETERANS ( from Reuters) - “ Most employers are ‘ unprepared’ for the return of wounded veterans of the wars in Afghanistan and Iraq and will have difficulty meeting their needs, according to a study released [ February 13th] by the Insurance Information Institute ( III). At least 16,600 U. S. soldiers ADA News No. 144 February 27, 2006
have been wounded, and many more of the 2 million who may serve in those arenas before the conflicts end could be traumatized, according to Robert Hartwig, chief economist for the institute and author of the study. Nearly a third of those troops are reservists and National Guard, who will be going back to their previous jobs. Hartwig said his survey shows that most employers don’t understand their needs or the special benefits they’re entitled to. ‘ These soldiers put their lives on the line and deserve the utmost respect,’ said Hartwig. ‘ But even big companies haven’t thought about their obligations to these people.’ Veterans are entitled to lifelong benefits, including mental health benefits. In addition, there are worker compensation issues for those wounded in battle or accidents, or have been traumatized by being in a war zone. ‘ There’s evidence that many soldiers will exhibit mental stress from their experience, and it’s important for employers to monitor them, particularly if they’re operating heavy machinery or driving,’ said Hartwig. After World War II and other conflicts, veterans faced discrimination when they returned home. In some cases, ‘ Second Injury Funds’ were set up to meet the needs of wounded soldiers whose injuries were aggravated by their stateside jobs. Those programs have largely disappeared, and been replaced by the Americans with Disabilities Act ( ADA). That law prohibits discrimination against anyone with a disability. Employers should be aware that failure to comply with the ADA can result in stiff fines, Hartwig said. Since 1992 the federal government has awarded more than a half- billion dollars to people who have been discriminated against in violation of the ADA.”
COURT CALLS DISABLED PARKING TAG CHARGE DISCRIMINATORY - Missouri must eliminate a $ 2 fee it charges for windshield signs that allow people with disabilities to park in reserved spaces after the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, MN, NE, IA, MO, AK) deemed the charge discriminatory last month. “ The state will no longer charge the $ 2 fee,” said Scott Holste, a spokesman for Missouri Attorney General Jay Nixon. He could not say when the state will stop charging for the signs, but he expects it to be soon, once state departments have a chance to discuss the matter. A three- judge panel with the Court of Appeals referred the case to a lower court in Missouri’s Western District, which will enter a judgment consistent with the panel’s opinion - largely a procedural step. One of the plaintiffs’ lawyers, Fred Switzer, called the judges’ ruling a “ great victory” in a case that has bounced between the courts for several years. ( This was the third time it reached the Appellate Court, with an intervening opinion by the U. S. Supreme Court. See ADA News, No. 136, June 2005.) “ It reaffirms the principles of the Americans with Disabilities Act,” said Switzer. “ The disabled cannot be charged for an accommodation required by the law.” In Missouri, like Pennsylvania, people with disabilities are allowed to park in reserved parking spots outside of businesses, government and other buildings by displaying a special license plate or a removable hangtag displayed through a vehicle’s windshield. The license plates cost the same as standard license plates, but the state charges a $ 2 fee annually for the hangtags. Since the lawsuit was filed, the state also has started charging $ 4 for a two- year option. Lawyers representing the state argued that because the special license plates were available at no additional cost, the state had satisfied the requirements of the ADA. The judges disagreed, pointing out that not all people with disabilities own cars, and many rely on others for transportation or rent or borrow vehicles from time to time. In those cases, the removable hangtag is needed to park in a reserved space. “ Missouri has elected to use parking placards to ensure that disabled people have access to government programs,” the judges wrote. Because of that, they said, the state cannot charge people with disabilities for the signs necessary to use the reserved parking spots. Switzer said the courts previously determined that those who have paid the fees in the past will not be reimbursed. Klingler, et al. v. Missouri, CA8, No. 03- 2345, 1/ 17/ 06.
DEAF GOLFER DEBUTS AT PEBBLE BEACH TOURNAMENT - Kevin Hall looks like any other golfer on the course. The only difference? He can’t hear a thing. He is completely deaf. A lot of times the gallery has no idea. And fans aren’t the only ones who don’t know he’s deaf. Sometimes the officials don’t even know. In fact, one time he didn’t hear a rule change and was penalized for it. Hall is playing in the AT& T Pebble Beach National Pro- Am Tournament. His score for the first round was 72 ( even), which is not bad. http:// www. pga. com/ tournaments/ scoring/ pga_ leaderboard. cfm. You can read his daily diary at http:// usdeafgolf. org/ KevinHallPebbleBeachDiary. htm. Golf Digest profiled Kevin Hall here.
COMING UP NEXT MONTH - March is the month for observing National Professional Social Work Month, Multiple Sclerosis Education & Awareness Month, Workplace Eye Health and Safety Month, Sports Eye Safety Month, National Save Your Vision Month, National Brain Injury Awareness Month, Talk With Your Kids About Sex Month, Child Life Month, Mental Retardation Awareness Month, Hemophilia Awareness Month, National Eye Donor Month, National Chronic Fatigue Syndrome Awareness Month, National Colorectal Cancer Awareness Month, National Kidney Month, National Nutrition Month, National Poison Prevention Month, American Red Cross Month; 5- 11 is National Patient Safety Awareness Week,, 6- 10 is National School Breakfast Week, 12- 18 is National Pulmonary Rehabilitation Week and Ground Water Awareness Week, 13- 19 is Brain Awareness Week and Problem Gambling Awareness Week, 15- 19 is Children and HealthCare Week, 19- 25 is National Inhalants and Poisons Awareness Week and March 28- April 2 is National Sleep Awareness Week; the 24th is World Tuberculosis Day, the 27th is International Doctor’s Day, the 28th is American Diabetes Alert Day, and the 31st is Kick Butts Day.
ADA News No. 144 February 27, 2006
ADA News No. 145 March 23, 2006
ADA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 145March 2006
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.
TERMINATION AFTER EXAM REFUSAL - Refusing to take a medical examination ordered by one’s employer is grounds for termination and not a violation of the ADA, said the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI); that is, so long as the examination is job- related and the termination not retaliatory. Merck & Co. directed a chemist to take a fitness for duty exam when his job performance and on- the- job behavior deteriorated, showing signs of possible schizophrenia. The chemist failed or refused to take the exam several times and was suspended and later terminated. Medical inquiries are governed by Section 102( c) of the ADA, which provides that an employer “ shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job- related and consistent with business necessity.” 42 U. S. C. § 12112( d)( 4). According to EEOC guidance, an examination may be viewed as acceptable where the employer “ has a reasonable belief based on objective evidence, that: ( 1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or ( 2) an employee will pose a direct threat due to a medical condition.” The Court determined that the observed changes in the chemist’s behavior, and the justifiable fear generated thereby in his coworkers, was “ more than sufficient evidence to justify [ Merck’s] medical inquiry.” Finding that the examination was not prohibited, the Court concluded that Merck’s “ decision to terminate [ the chemist’s] employment, after he refused or failed to submit to the examination, is not retaliation under the ADA,” and granted summary judgment. Ward v. Merck & Co., CA3, No. 04- CV- 5996, 1/ 9/ 06 ( http:// www. paed. uscourts. gov/ documents/ opinions/ 06d0034p. pdf).
HERSHEY EMPLOYEE’S CLAIM NOT BARRED BY SSDI STATEMENTS - The U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) has found that a federal trial court’s granting of summary judgment on the ADA claim of a former employee at Hershey Chocolate USA was erroneous. The inspector worked in several manual labor jobs for Hershey from 1985 until 1998, when she developed medical problems involving back pain ADA News No. 145 March 23, 2006
for which she had surgeries in 1998, 2000 and 2002. When she returned to work with medical restrictions in 1999, Hershey accommodated her by assigning her to a light duty position as an inspector on one of three “ shaker tables” in a York Peppermint Pattie production line. In 2001, Hershey learned that workers on the shaker tables were experiencing a high incidence of repetitive stress injuries and adopted a policy requiring inspectors to rotate frequently among the three tables. ( There were slight differences in the motions required of employees among the three tables, “ line 7" being seen as the most strenuous.) The inspector objected to the new policy because she thought that working on line 7 would aggravate her medical problems. A week later, the inspector presented her managers with a letter from her attorney asking that she be exempted from the rotation system, and another from her physician imposing restrictions on her work activities even more strict ( no “ stretching, bending, twisting, or turning of the neck or lower back or lifting of greater than 20 pounds”) than previously imposed. In response, “ Hershey decided that [ the inspector’s] inability to work on line 7 prevented her from participating in the rotation system, which they viewed as necessary to prevent injuries to all inspectors,” the Court found. “ Hershey did not allow [ the inspector] to continue as a shaker table inspector.” The inspector was granted short- term disability under her union contract, and eventually was approved for long- term benefits under the contract and disability benefits from the Social Security Administration. Two years later when her contract benefits ran out, however, she filed a complaint of discrimination with the EEOC and subsequently sued the company, alleging that she could have continued in her job had Hershey agreed to accommodate her. Hershey moved to dismiss the complaint, arguing that her claim was estopped by “ admissions” made in her applications for disability that indicated she was “ totally disabled,” and that the inspector was not a qualified individual with a disability ( QID). The motion was granted in a 2004 memorandum opinion by the U. S. District Court for the Eastern District of Pennsylvania. On appeal, the 3rd Circuit reversed. “ Because these statements did not state categorically that [ the inspector] could not work at all or take into account [ her] entitlement to reasonable accommodation, we see no inconsistency between these statements and her current claim,” wrote Judge Rendell for the Court. Judge Rendell went on to address Hershey’s claim that the inspector was not a QID entitled to relief under the ADA because she could not perform the essential function of her job, i. e., rotating among the shaker tables, finding it a question of fact for a jury. Likewise, Judge Rendell found Hershey’s argument that exempting the inspector from the rotation policy was not a reasonable accommodation required under the Act to be a jury question. Turner v. Hershey Chocolate USA, CA3, No. 04- 4674, 3/ 20/ 06 ( http:// www. ca3. uscourts. gov/ opinarch/ 044674p. pdf).
DISABILITIES WEBSITE OF THE MONTH - It won’t win any awards for its visual aspects. disABILITY Information and Resources is just that, a website providing information and resources for the disabilities community. And what a collection of resources! Unbelievably deep ( just try following a link) and broad- based in its content, the website’s home page is divided into several general categories, including one on political action. Although a good search engine would be helpful, it’s still a good place to go if you have no idea where else to find the information you need. Http:// www. makoa. org
EEOC WINS DISABILITY BIAS SUIT AGAINST FEDEX - A federal jury has found in ADA News No. 145 March 23, 2006
favor of the U. S. Equal Employment Opportunity Commission ( EEOC) in its employment discrimination lawsuit against Federal Express Corporation ( FedEx) for violating the ADA. The EEOC had charged the Memphis- based global shipping giant with failing to provide a reasonable accommodation to a profoundly deaf employee who worked as a package handler at the company’s Baltimore Ramp. The suit charged FedEx with violating the ADA when it failed to provide reasonable accommodations to the employee in the form of American Sign Language interpreters, despite his repeated requests. The jury found FedEx liable for punitive damages in the amount of $ 100,000 for its knowing failure to accommodate as well as compensatory damages of $ 8,000 for the loss of the accommodation itself. The EEOC’s lawsuit was filed in the U. S. District Court for the Northern District of Maryland after the agency first attempted to reach a voluntary pre- litigation settlement. “ This verdict sends victims and their employers a big message,” said EEOC Regional Attorney Jacqueline McNair. “ Employers must provide reasonable accommodations for qualified individuals with disabilities. It is the employer’s responsibility to demonstrate that it is committed to fully adhere to the requirements of the ADA on behalf of disabled employees, and that they are not to be treated like second- class citizens.” EEOC v. Federal Express, USDCt. DMd. No. 04 CV- 3129, 3/ 2/ 06.
CONFIDENTIALITY OF MEDICAL INFORMATION - In a November decision by the U. S. District Court for the Eastern District of Pennsylvania, a Pennsylvania employer found out just how important it is to maintain confidentiality about the medical information of its employees. The Spring Garden facility of Rohm and Haas Company was being painted in July 2002, and an employee complained that the paint fumes were aggravating her asthma. The employee’s supervisor informed her that she could no longer enter the office. Subsequently, the company conducted a safety investigation, and issued an Incident Investigation Report. The Incident report, which was distributed to several of the employee’s co- workers, disclosed the employee’s asthmatic condition without her authorization. The employee brought an action in the Pennsylvania Human Relations Commission and one month later, she was fired, allegedly for poor performance and “ irregularities” in her expense reports. She filed new complaints alleging retaliatory discharge and was granted the right to sue. Her lawsuit charged the employer with disability discrimination, retaliation, and disclosure of confidential medical information. In response to the employer’s attempt to dismiss the claims, the court dismissed all but the count involving the disclosure, allowing that charge to go to trial. [ This case illustrates how important it is to train managers to protect the confidentiality of all employees medical information.] Khalil v. Rohm and Haas Co., USDCt. EDPa., No. 05- cv- 03396, 11/ 17/ 05 ( http:// www. paed. uscourts. gov/ documents/ opinions/ 05D1413P. pdf).
AREA CALENDAR -
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World Tuberculosis ( TB) Day Commemoration; March 24, 2006; East Capitol Rotunda, Harrisburg, PA; you are invited to join the Pennsylvania Department of Health in commemoration of World TB Day, held each year to raise awareness about the international health threat presented by TB; as part of this observance, the Bureau of Communicable Diseases’ TB/ STD Division will host an informational expo, featuring experts in health promotion and disease prevention; information will be ADA News No. 145 March 23, 2006
distributed by the Pennsylvania Department of Health, in partnership with The American Lung Association and the Pennsylvania Thoracic Society; exhibits chronicling the progression of TB and ways to prevent its spread will also be displayed
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Breakthrough Strategies for Autism Spectrum Disorders; April 2- 6, 2006; Saddle Brook Marriott, Saddle Brook, NJ; series of free, interactive lectures by Autism Treatment Specialist Raun K. Kaufman; lectures are designed to provide parents and professionals with techniques they can immediately implement with their children with special needs to maximize speech and language development, increase eye contact, and deal effectively with repetitive “ stimming” behaviors and tantrums; more information at http:// www. autismtreatment. com/ nyctour
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Wheels and Bodies in Motion: Disability Awareness Concert; April 5, 2006; Robert Schonhorn Arts Center, Peapack, NJ; concert will forever change the way you experience live dance performance; Roxey Ballet will take you on a journey that is sure to leave vision of the body and perpetual motion etched into your minds for years to come; Mark Roxey’s production of Wheels and Bodies in Motion highlights original works created by Giovanni Ravelo, Ronnie Carney, Mark Roxey and Roxey Ballet’s newest company member Kitty Lunn of Infinity Dance Theater; tickets and information at http:// www. roxeyballet. com/ roxeyco/ htm/ shows/ prog3. htm
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Spring Developmental Disabilities Lecture Series; April 7- May 9, 2006; Iselin and Mt. Laurel, NJ; sponsored by The Boggs Center on Developmental Disabilities ( NJ UCEDD), lecture series consists of four sessions; no registration fee but advanced registration is required; sessions are 3 hours, 9: 30 a. m. to 12: 30 p. m. each day; register online at http:// rwjms. umdnj. edu/ boggscenter/ training/ dd_ lecture_ series. htm or call 732- 235- 9325 for a registration brochure.
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Self- disclosure and the Stigma of Mental Illness - Free Training Teleconference; April 27, 2006; Rockville, MD; for additional teleconference information, please refer to the Training section of the SAMHSA ADS Center web site, or contact a technical assistance representative by e- mail at stopstigma@ samhsa. hhs. gov or by telephone 1- 800- 540- 0320
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Workforce Discovery: Diversity and Disability in the Workplace; May 10 - 11, 2006; Gaithersburg, Maryland; an in- depth “ train- the- trainer” training on disability awareness with the provisions of the ADA integrated throughout each of five training modules: Typecasting: Understanding Disability, Legal Implications: An Overview of the Americans with Disabilities Act, Reasonable Accommodation, Etiquette: Communication and Interaction, and Best Practices for Trainers; for more information contact Marissa Johnson or call 1- 800- 949- 4232 V/ TTY ( in DC, DE, MD, PA, VA, WV) or 301- 217- 0124 V/ TTY; registration deadline is April 21
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2006 PA YOUTH LEADERSHIP NETWORK - May 18- 19, 2006; Hilton Harrisburg ADA News No. 145 March 23, 2006
and Towers, Harrisburg, PA; event targets current high school sophomores from across the Commonwealth, and is designed to explore post secondary outcomes and promote self- advocacy, self determination, and self efficacy skills; applications in Word format, due no later than March 29, are available here; for information, contact Joan Kester, OVR, 717- 787- 6695 or 800- 442- 6351 ( V), 866- 830- 7327 ( TTY)
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Ohio Wheelchair Games; May 18- 20, 2006; Ohio State University, Columbus, OH; the Ohio Wheelchair Games takes place every spring and include events such as track & field, slalom, swimming, weightlifting, archery, table tennis, bowling, and target shooting; info at http:// amp. osu. edu/ pt/ 2906. cfm
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Camp Abilities PA; May 19- 20, 2006; West Chester University, West Chester, PA; developmental sports clinic/ camp for children who are blind and visually impaired; camp is set up to provide a 1: 1 instructional situation for each child; coaches are undergraduate students in professional preparation programs such as adapted physical education, physical education, and special education; more information available at http:// www. www. campabilitiesbrockport. org
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Survivor Harbor VII 2006; June 11,2006 ; Baltimore, MD; first and only race permitted and held on Downtown Baltimore’s waterfront promenade, from Tide Point to Canton; also the first race in America with a “ survivor” division for athletes living with chronic disease or recovering from a catastrophic illness or injury; visit the Active Network for more information.
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Disability Goes Public: Re- Imagining Policy/ Protest/ Possibilities: Society for Disability Studies 19th Annual Conference; June 14- 17, 2006; Hyatt Bethesda, Washington, DC; information at conference website, http:// www. uic. edu/ orgs/ sds/ annualmeetings. html
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Community Partners Concert; 8: 00- 11: 00 PM, June 15, 2006; Heinz Hall, Pittsburgh, PA; sure to please annual event; contact Marci Sloan at 412- 683- 7100 ext 337 for more information
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AG Bell Association 2006 Convention; June 23- 27, 2006; Westin Convention Center, Pittsburgh, PA; sponsored by The Alexander Graham Bell Association for the Deaf and Hard of Hearing; variety of short courses, concurrent sessions and poster presentations designed for parents, professionals and adults who are deaf or hard of hearing; more information at conference website, http:// www. agbell. org/ desktopdefault. aspx? p= convention
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Head Start’s 8th National Research Conference; June 26- 28, 2006; Hyatt Regency Washington, Washington, DC; conference to identify and disseminate research relevant to young children ( birth to 8 years) and their families and to foster partnerships among researchers, practitioners and policymakers; conference website at http:// www. acf. hhs. gov/ programs/ opre/ hsrc/ index. html
ADA News No. 145 March 23, 2006
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CueSign Camp; July 14- 20, 2006 ; Towson, MD; bilingual program offers opportunity to explore cued English and American Sign Language and their respective cultures; visit CueSign Camp web site for more information
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Disabled Defense; July 29, 2006; Renaissance Hotel, Washington DC; only personal self- defense courses that can adjust to a myriad of disabilities, Disabled Defense is based on a combat art known as Budo Taijutsu; training focuses on timing and distance, as opposed to speed and strength in order to empower students to be able to defend themselves based on individual abilities; techniques taught are founded on the principles of natural body dynamics, allowing for flexibility in the training; more information at http:// familydefense. warriorschool. com/ disabled. asp
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Power Through Knowledge: Our Freedom, Our Choice; September 7- 9, 2006; Hilton Harrisburg and Towers, Harrisburg, PA; 7th Biennial Statewide Independent Living Conference; registration scheduled to open May 1st; for more information, visit the Pennsylvania Statewide Independent Living Council website
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Aquatic Therapy Specialty Institutes; September 7- 10, 2006; Washington, DC; the Aquatic Therapy Symposium and all ATRI events provide practical aquatic therapy education for all your continuing education needs; participants spend time in both the classroom and the pool for a practical experience providing knowledge that is immediately usable; information at http:// www. atri. org
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The Future of Disability Statistics: What We Know and Need to Know; October 5- 6, 2006; Doubletree Hotel/ Crystal City, Arlington, VA; “ State of the Science” conference presented by the Cornell University RRTC on Disability Demographics and Statistics ( StatsRRTC); conference will cover current statistic on the characteristics and status of working- age people with disabilities derived from current survey and administrative data and explore options for improving future data collection and data distribution efforts; information at conference website: http:// www. ilr. cornell. edu/ edi/ srrtc- 2006conference. cfm
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Aquatic Therapy Professional Development Days; October 15, 2006; Lancaster, PA; the Aquatic Therapy Symposium and all ATRI events provide practical aquatic therapy education for all your continuing education needs; participants spend time in both the classroom and the pool for a practical experience providing knowledge that is immediately usable; information at http:// www. atri. org
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14th Annual UCP Community Heroes Awards Dinner; October 17, 2006; Westin Convention Center, Pittsburgh, PA; contact Marci Sloan at 412- 683- 7100 ext 337 for information
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Research in Context: A Capital Idea for 2006: 28th International Conference on Learning Disabilities; October 20- 22, 2006; McLean, VA; http:// www. cldinternational. org/ Conference/ conference. asp
ADA News No. 145 March 23, 2006
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Unrestrained Progress: A New Generation; November 8 - 11, 2006; Baltimore, MD; TASH annual conference; watch the TASH web site for forthcoming details
ASSISTIVE TECHNOLOGY IN THE SCHOOL HELPS KIDS CONNECT - On January 25th, parents, education professionals, and college students had the pleasure of attending the fourth workshop in the UCP CARES series, Assistive Technology in the School, with speaker Lynn Chiafullo. Eighty- four attendees gathered inside Levy Hall at historic Rodef Shalom. Read more about this event, sponsored by UCP Pittsburgh, at http:// www. ucp. org/ ucp_ localdoc. cfm/ 136/ 9500/ 9500/ 9500- 9500/ 6516.
GOVERNOR APPOINTS NEW MEMBERS TO REHABILITATION ADVISORY COUNCIL - Governor Edward G. Rendell has announced the appointment of Lisa Case and Matthew Seeley to the State Rehabilitation Advisory Council, and the re- appointment of Dr. Diana Bender, Ph. D., to the Advisory Council for the Deaf & Hard of Hearing. “ These two advisory groups are important in helping the Commonwealth understand and address the needs of people across the state with disabilities,” Governor Rendell said. “ Lisa’s dedication to securing accessible and affordable housing for persons with disabilities, and Matthew’s advocacy experience with the Independent Living Council, prove their dedication to ensuring the needs of Pennsylvanians with disabilities are met.” Case and Seeley will support the Rehabilitation Advisory Council’s mission to inform the State Board of Vocational Rehabilitation, and the Governor, about the diverse issues affecting the vocational rehabilitation of people with disabilities. Their terms expire on July 12, 2008. Bender was first appointed to the Council for the Deaf & Hard of Hearing in 2002. She will continue her service with the commonwealth until her second term expires on July 23, 2009. For more information, visit www. state. pa. us PA Keyword: Disability Services. [ news release from the Office of the Governor].
AROUND THE WORLD - Women With Disabilities in Zimbabwe Experience Discrimination ( by Gladys Charowa) - “ We do not network with people with disabilities. What will ‘ people’ say if I am seen having a meeting with you? You have to stay indoors and ask the department of social welfare to assist you with food.” Can you imagine what it feels like to be at the receiving end of this comment? Read more at http:// www. disabilityworld. org/ 12- 01_ 06/ zimbabwewomen. shtml.
FORMER BVS DIRECTOR WILL NOT GET HER JOB BACK - You should recall the case reported on last December of the blind director of the Commonwealth’s Bureau of Blindness and Visual Services who was fired from her position. A federal jury found that she was discriminated against in her termination and awarded her $ 3.2 million in damages. At the time of the verdict, the former director said through her attorney that what she wanted most was to have her old job back. Now it has been announced that she will not be returning to work at BVS. Judge Sylvia Rambo has ruled that “ an utter lack of trust and willingness to cooperate” existed between the director and her former employer that would make it impossible for her to return. State representatives had said in a filing with the court that reinstating the director would yield “ disastrous results,” allegedly because other managers would be unable to trust her. The person who replaced the fired director, who also was blind, has reportedly since resigned her position. The defendants have promised ADA News No. 145 March 23, 2006
an appeal of the decision.
NIDRR SEEKS PEER REVIEWERS IN EMERGENCY PREPAREDNESS AND DISABILITY - The National Institute on Disability and Rehabilitation Research ( NIDRR) has announced the inclusion of emergency preparedness in its Long- Range Plan for Fiscal Years 2005- 2009, and has invited interested persons to submit resumes for inclusion in a pool of potential peer reviewers for future research and development projects in emergency preparedness and disability. NIDRR supports applied research on all aspects of disability and rehabilitation. NIDRR’s work is aimed at improving the lives of people of all ages with disabilities. Published in the Federal Register on February 15, 2006, NIDRR’s Long- Range Plan sets out five domains of research - employment, participation and living in the community, health and function, technology for access and function, and disability demographics. New this year, the Plan incorporates emergency preparedness in the discussion of the national policy context for NIDRR research. NIDRR now seeks peer reviewers with expertise in research, statistics, and/ or engineering who also have expertise in any of the issues related to emergency preparedness, mitigation, response and recovery for people with disabilities. Reviewers are required to evaluate applications based on a series of criteria in areas such as research design, development, technical assistance and dissemination. NIDRR strives to create diverse panels of peer reviewers, and persons with disabilities, and persons from diverse racial, ethnic, geographic and other backgrounds are encouraged to respond. Regulations prohibit Federal employees from participating as NIDRR peer reviewers. However, everyone is encouraged to forward this announcement to persons who may be interested in participating. Interested parties are invited to send current and detailed resumes to bonnie. gracer@ ed. gov for consideration.
ACCESS BOARD RELEASES COMPARISON OF THE NEW ADAAG TO THE ADA STANDARDS AND THE INTERNATIONAL BUILDING CODE - The U. S. Access Board has issued a comparison between the new ADA Accessibility Guidelines ( ADAAG), the original ADA standards, and the International Building Code. This side- by- side comparison is arranged and ordered according to the format and sequence of the new ADAAG, which the Board published in July 2004. Provisions in the ADA Standards maintained by the Department of Justice, which currently are based on the original ADAAG ( 1991), are provided alongside corresponding sections of the new ADAAG. The Department of Justice is in the process of updating its ADA standards according to the new ADAAG. In updating ADAAG, the Board sought to reconcile differences from model building codes, including the International Building Code ( IBC). Used by a growing number of states and local jurisdictions, the IBC contains scoping provisions for accessibility and references the technical criteria of the ANSI A117.1 standard, a voluntary consensus standard issued by American National Standards Institute. The comparison includes accessibility provisions of the IBC, including those referenced in the ANSI standard. For further information on the IBC, visit the International Code Council's website at www. iccsafe. org.
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). ADA News No. 145 March 23, 2006
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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 an article about the Cognitive Skills Enhancement Program.
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The March 2005 edition of the newsletter of the National Center on Physical Activity and Disability ( NCPAD) includes articles about sports, athletics and people with disabilities. The monthly newsletter is available by free subscription, and on the web at http:// www. ncpad. org/ newsletter/ newsletter. php? letter= current
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The January 2006 edition of the National Council on Disability Monthly Bulletin is available online at http:// www. ncd. gov/ newsroom/ bulletins/ 2006/ 06bulletins. htm.
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Volume 3, Issue 5 of the Job Accommodation Network’s Consultant’s Corner discusses issues of accommodations, ADA and light duty at http:// www. jan. wvu. edu/ corner/ vol03iss05. htm
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The Office of Disability Employment Policy, U. S. Department of Labor, maintains a database of publications useful for employers and individuals with disabilities alike. Recent additions to the catalog include Strategic Connections: Recruiting Candidates with Disabilities, Effective Emergency Preparedness Planning: Addressing the Needs of Employees with Disabilities, and many more, found at http:// www. dol. gov/ odep/ pubs/ publicat. htm
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The U. S. Department of Transportation has issued four new guidance documents providing assistance to people with disabilities regarding transportation issues. The documents can be found at http:// www. fta. dot. gov/ 14531_ 17511_ ENG_ HTML. htm. In addition, the Transportation Department’s Aviation Consumer Protection Division has issued two new publications for air travelers with disabilities, located online at http:// airconsumer. ost. dot. gov/ pubs. htm
UNITED CEREBRAL PALSY STATEMENT ON THE DEATH OF DANA REEVE - Stephen Bennett, President and CEO of United Cerebral Palsy, issued the following statement March 7th regarding the passing of Dana Reeve: “ Christopher and Dana Reeve were accidental advocates in the world of disability. Yet seemingly overnight, their presence and persistence for advanced research and public awareness on behalf of all people with disabilities touched the lives of millions. And now we in the disability community are left with a tremendous loss of leadership after the tragic passing of Mrs. Reeve yesterday. On behalf of United Cerebral Palsy and the families we serve, I extend our sincere condolences to the Reeve family, as well as our friends at the Christopher Reeve Foundation who will carry the Reeves’ vision forward.”
UCP NAMES THE TOP 5 DISABILITY FILMS OF 2005 - United Cerebral Palsy, one of the nation’s largest health charities and a leading advocate for all Americans with disabilities, has announced its list of the Top Five films featuring people with disabilities in 2005. “ The accurate portrayal of people with disabilities in film is essential to informing the ADA News No. 145 March 23, 2006
American public about the challenges families face and overcome everyday,” said Stephen Bennett, President and CEO of United Cerebral Palsy. “ The best disability films of 2005 tell stories that break stereotypes. From outrageous comedy to thoughtful drama, these movies are about people with disabilities living without limits.” The five films named by UCP are, in order, Murderball, Rory O’Shea Was Here, Yellow Brick Road, The Kid & I, and The Ringer.
UCP AND THE LUDACRIS FOUNDATION LAUNCH PUBLIC AWARENESS CAMPAIGN - United Cerebral Palsy and The Ludacris Foundation have announced the launch of a new public awareness campaign featuring Grammy- nominated musician and actor Chris “ Ludacris” Bridges. The nonprofit partners aim to raise awareness for all Americans with disabilities while shedding light on the disproportionate rate of disability in minority communities. According to multiple studies, African Americans account for nearly 20 percent of people with disabilities despite making up just 13 percent of the U. S. population. In addition, more than 35 percent of all African American families reported having a family member with a disability in 2000, the second highest rate of disability for any racial group. To highlight the need for greater awareness and acceptance of disability, Ludacris appears in the recently released United Cerebral Palsy public service announcement “ Dream” featuring Ruje’anne Duplessis, a teenager born with cerebral palsy. When prom season arrived last year, Ruje’anne wished for the same magical evening that all high school seniors want. So she wrote Black Entertainment Television ( BET) to ask for help in reaching her dream prom date Ludacris. BET passed Ruje’anne’s letter to Ludacris and he flew to Massachusetts to accompany her to the Central High prom. “ The prom is a very important part of a young lady’s life, and it hit my heart to share it with her,” said Ludacris. “ Ruje’anne might have a disability, but that doesn’t make her different from anyone else. She’s still dreaming and making a difference.” Ruje’anne is now in college preparing for a career in the music industry. With help from UCP, Ruje’anne found a personal care attendant and lives independently at school. “ Ruje’anne Duplessis is an example of a person with a disability living without limits,” said Stephen Bennett, President and CEO of United Cerebral Palsy. “ Through her story, we hope to raise awareness for millions of people with disabilities while informing the public about the services United Cerebral Palsy affiliates provide to their communities.” Watch “ Dream,” the new United Cerebral Palsy Public Service Announcement featuring Ludacris ( Opens Windows Media Player).
COMING UP NEXT MONTH - Spring is in the air and April is just around the corner. Look for these observances: National Donate Life Month, National Cancer Control Month, National Alcohol Awareness Month, National STDs/ Family Planning Awareness Month, Sexual Assault Awareness Month, National Autism Awareness Month, Candlelight Vigil for Eating Disorders Awareness Month, Cesarean Awareness Month, Child Abuse Prevention Month, Counseling Awareness Month, National Facial Protection Month, National Humor Month ( there’s a month for that?), IBS ( Irritable Bowel Syndrome) Awareness Month, National Occupational Therapy Month, Women’s Eye Health and Safety Month, National Youth Sports Safety Month, and National Foot Health Awareness Month; April 2- 8 is Healthcare Access Personnel Week, 3- 7 is National Youth Violence Prevention Week, 3- 9 is National Public Health Week, 4- 10 is National Take the Stairs to Work Week, 5- 12 is Health in the Americas Week, 9- 15 is National Health Information Privacy & Security Week, 10- 16 is Patient Advocacy Week, 16- 22 is National Minority Cancer Awareness Week, National Heimlich Maneuver Week and National Volunteer Week, 17- 23 is National Electroneurodiagnostic Week, 23- 29 is National Infants Immunization Week, 24- 30 is National Medical Laboratory Week, 23- 29 is Administrative Professionals Week and April 30- May 6 is North American Occupational Safety and Health Week; April 7- 8 is Alcohol Free Weekend and April 30- May1 is WalkAmerica March of Dimes; April 1st is YMCA Healthy Kids Day, the 6th is A Day to End Sexual Violence and National Alcohol Screening Day, the 7th is World Health Day and Cancer Fatigue Awareness Day, the 11th is National Radiology Nurses Day, the 14th is International Moment of Laughter Day ( there’s a day for that?), the 16th is World Voice Day, the 18th is National Health Care Volunteer Day, the 22nd is ( ta- da!) Earth
Day and the 26th is Administrative Professionals Day ( forget this at your peril!). ADA News No. 146 April 18, 2006
ADA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 146 April 2006
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.
ACCESSIBLE SERVICES IN INACCESSIBLE BUILDING FAILS TITLE II TEST - The U. S. District Court for Eastern Kentucky decided a Title II case in January involving the accessibility of a public entity, the Gallatin County, Kentucky courthouse. The county courthouse, the site of both county and State facilities, is a three- story structure constructed in 1838 in the town of Warsaw, Kentucky. The plaintiffs were four individuals with mobility disabilities: two attorneys prevented from practicing in the courthouse by physical barriers; another person who had tried unsuccessfully to attend meetings in the building; and a fourth who worked in the building. Physical barriers in the 168- year- old building included a too- narrow manual entrance door that was heavy and opened inward and a wheelchair ramp that was too narrow and often not cleared of ice and snow. Public restrooms are in the basement only, and the building has no elevator or other mechanical lifting device. Ruling on cross motions for summary judgment, Judge David Bunning granted summary judgment to plaintiffs on their ADA claims, agreeing that the county is required under the law to make the courthouse accessible. The judge dismissed arguments made by the county that it is the State, not the county, that is responsible for making the State court facilities accessible ( the State had failed to budget ADA News No. 146 April 18, 2006
money for the renovations); that the county had already made “ reasonable modifications” in order to make its own services and programs accessible, and that the plaintiffs had not shown they had “ been denied access to any county services, programs, or activities”; and that requiring the county to make the courthouse building accessible would be an “ overwhelming financial burden” on the county. “[ D] espite the division of space and responsibility inside the courthouse between the State and County,” wrote Judge Bunning, “ the relevant inquiry for Title II purposes is whether the courthouse, when viewed in its entirety, is readily accessible.” Reaching out from his seat in rural Kentucky, the judge compared the case to a 1999 Southern District of New York case involving Yankee Stadium in which a group of persons with disabilities sued New York City, its Parks and Recreation Department and the Yankees organization. “ The City argued that because the regulations state that the service, program, or activity must be readily accessible ‘ when viewed in its entirety,’ the court was required to look at the accessibility of the stadium as a whole, not at individual elements. [ ] The court agreed … Likewise, the seminal issue in this case is whether the courthouse as a whole, rather than the discrete units/ facilities therein, are accessible. Based on the evidence presented, [ ] the Court concludes that it is not,” Judge Bunning resolved. Ewbank, et al. v. Gallatin County, Kentucky, USDCt. EDKy., No. 03- 156- DLB, 1/ 17/ 06.
SUPREME COURT ORDERS NEW HEARING - The U. S. Supreme Court Monday revived a lawsuit alleging that Nebraskans with developmental disabilities are in danger of being institutionalized because the state is not fully funding programs for them. The 2003 lawsuit, filed by Nebraska Advocacy Services, says the state is failing to meet its programming obligations in violation of federal Medicaid law and the ADA. The U. S. Court of Appeals for the Eighth Circuit ( ND, SD, MN, NE, IA, MO, AK) said earlier that Nebraska could not be sued under the disabilities act. The Supreme Court, in a brief order, voided the 8th Circuit decision. The Justices sent the case back for a new hearing, in light of U. S. v. Georgia, a January high court ruling that states could be sued for damages by inmates with disabilities under the ADA. U. S. v. Nebraska Department of Health and Human Services, USSCt., No. 05- 777, 4/ 17/ 06 ( decision below was Bill M. v. Nebraska Department of Health and Human Services, CA8, No. 04- 3263, 5/ 27/ 05 ( http:// www. ca8. uscourts. gov/ opndir/ 05/ 05/ 043263P. pdf)).
DISABILITIES WEBSITE OF THE MONTH - The “ Employment Support For People with Disabilities” section of the Social Security Administration provides users with a wealth of information about federal government programs for people with disabilities. The web page’s self- stated mission is “ to promote the employment of Social Security beneficiaries with disabilities by designing policies that make work pay; promoting research and program innovation; educating the public about programs and services that facilitate entry into the workforce; and partnering with other public and private groups to remove employment barriers for people with disabilities.” Information is available for youth with disabilities, employers, service providers, beneficiaries and disabilities advocates. Http:// www. ssa. gov/ work
FAILURE TO ACCOMMODATE COSTS SODA COMPANY $$$ - The U. S. Court of Appeals for the Eighth Circuit ( ND, SD, MN, NE, IA, MO, AK) recently affirmed a jury verdict awarding nearly $ 74,000 to a “ route supervisor” who was medically released by his employer, Dr Pepper, though the Court denied an additional $ 100,000 in punitive damages. (“ The period after Dr was dropped in the 1950s.” - Court’s footnote # 1.) After working for Dr Pepper for four years, the supervisor developed partial blindness and was no longer capable of driving. The supervisor discussed possible accommodations with his supervisor, who lacked sufficient authority to make ADA News No. 146 April 18, 2006
the changes necessary to accommodate him. The two men then met with their regional human resources manager who refused to consider any position changes that could have accommodated the supervisor. Her only response to the supervisor’s request was to say she would fill out paperwork for his medical leave of absence. While on leave, the supervisor continued to discuss available positions with his former supervisor until the division manager directed the latter to stop having discussions with him. For over a year, the supervisor continued to request that Dr Pepper reinstate him to another position, but was refused. During this time he held several temporary jobs with other employers doing work similar to that he had done in his former job. After he filed an ADA lawsuit and the court denied Dr Pepper’s motion for summary judgment, the company sent the supervisor a letter offering him a position, but he turned it down based on family considerations. The jury awarded the supervisor a total of $ 173,910 after a trial in which the letter from Dr Pepper was used as evidence. Dr Pepper appealed, arguing that the trial court should have disregarded the jury verdict and found for the company as a matter of law. The Appellate Court rejected the company’s contentions, but found insufficient evidence to support the punitive damages award. The Court did find that Dr Pepper management failed to engage the supervisor in an interactive process, and failed to accommodate his disability. Canny v. Dr Pepper/ Seven- Up Bottling Group, Inc., CA8, No. 05- 1491, 3/ 9/ 06 ( http:// www. ca8. uscourts. gov/ opndir/ 06/ 03/ 051491P. pdf).
UPS SHOULD HAVE ACCOMMODATED WITH AGENDA - The interactive process preceding an ADA accommodation must be conducted in good faith by an employer in order to be adequate, according to a recent decision by the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, MN, NE, IA, MO, AK) involving a Package Division Manager for UPS. After eleven years on the job, the manager got a new supervisor who was much more demanding in the amount of information he expected his subordinate managers to know by memory. The new supervisor publicly berated the manager when he was unable to answer the supervisor’s questions, and the frustration and depression caused by the new supervisor’s demands resulted in the manager having a nervous breakdown three months later, for which he was granted FMLA leave. Prior to his return from leave, the manager tried to negotiate changes in his work environment with his supervisor and the UPS Human Resources Manager, but they merely referred his requests to the company’s regional office without taking any action. The regional office sent the manager a company ADA accommodation form to complete and return. The manager responded with a report from his treating physician, but the company insisted on his completing the company form. After completing the form, the manager met several times with a company “ Workplace Planning Manager” to discuss his needs, but no changes were forthcoming. [ The back- and- forth between the manager and the company is long and complicated, and best read directly from the opinion.] The manager eventually returned to work, but sued the company for disability discrimination and failure to accommodate. At the end of trial, UPS moved for judgment in its favor, arguing that the manager had failed to show he was a qualified person with a disability, that UPS had engaged in an interactive process, and that the manager had been reasonably accommodated. The court denied the motion, and the jury found in the manager’s favor, awarding him compensatory damages and back pay. On appeal, the 8th Circuit Court refused to overturn the jury award and affirmed. “ While UPS engaged in an interactive process with [ the manager],” wrote Circuit Judge Benton for the Court, “ the jury apparently believed that UPS did not act in good faith.” The Court apparently based its decision on a finding that the manager needed accommodation for only marginal job functions, an accommodation which UPS denied. The case is Battle v. UPS, CA8, No. 04- ADA News No. 146 April 18, 2006
4123/ 04- 4128, 2/ 21/ 06 ( http:// www. ca8. uscourts. gov/ opndir/ 06/ 02/ 044123P. pdf).
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Transition from High School to College: The First Steps for Students with Disabilities Conference; April 28, 2006; Rutgers University, New Brunswick, NJ; conference will improve participants’ understanding of the obligations of post- secondary institutions and high schools as well as the responsibilities of students themselves; info at http:// studentaffairs. rutgers. edu/ transition
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EEOC on Job Accommodation Issues; May 2, 2006; Audio Conference; second event in Job Accommodation Network’s Accommodation and Compliance Series features Sharon Rennert, Attorney Advisor, U. S. Equal Employment Opportunity Commission and Linda Batiste, JAN Consultant; speakers will provide legal and practical information about medical exams and inquiries, safety, direct threat, and other tough accommodation issues as well as respond to questions from participants; captioning available; for complete information go to http:// www. jan. wvu. edu/ teleconf
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30th Annual Philadelphia Developmental Disabilities Conference; May 5, 2006; The Children’s Hospital of Philadelphia, Philadelphia, PA; sponsored by The Children’s Hospital of Philadelphia LEND Program and Philadelphia Developmental Disabilities Corporation/ ARC; bringing together parents, family members, individuals with disabilities and professionals in the field, conference purpose is to provide a forum to discuss areas of mutual concern, foster partnership and collaboration, and keeping abreast of latest developments; for more information, please access the Conference Program Brochure.
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National Council on Independent Living ( NCIL) Annual Conference/ 10th Annual March & Rally; May 22- 25, 2006; Grand Hyatt Hotel, Washington, DC; conference plenary sessions, workshops and other presentations will focus on strengthening efforts and successes in moving and keeping people with disabilities out of nursing homes and other institutions; for conference information, visit NCIL website, or contact our conference coordinators at 800- 952- 6919 ( V) or 703- 761- 1507 ( TT) or by e- mail at ncil@ hayespr. com
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84 Lumber Golf Classic; September 14- 17, 2006; Nemacolin Woodlands Resort, Farmington, PA; sponsored by UCP of Pittsburgh; ADA News has learned that this year will be the last year for the 84 Lumber Golf Classic; 84 Lumber, beset with financial difficulties, is undergoing a business reorganization; see ADA News, No. 145, March 2006 for details about the tournament
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National Symposium on Dispute Resolution in Special Education; December 7- 9, 2006; Academy for Educational Development, Washington, DC; sponsored by CADRE, symposium invitees include state dispute resolution coordinators, parent advocates, directors of special education, dispute resolution practitioners, attorneys, educators, service providers, and others interested in creating effective agreements that benefit educational and early intervention programs for infants, toddlers, children, and youth with disabilities; for more information, visit the CADRE Conference Site ADA News No. 146 April 18, 2006
PIZZA HUT/ JUSTICE SETTLEMENT - The U. S. Department of Justice announced on March 28th that they had reached a settlement agreement under Title III of the ADA with NPC International, the nation’s largest Pizza Hut franchisee, based in Pittsburg, Kansas. According to a DOJ news release, NPC will make its 775 Pizza Huts nationwide fully accessible to people with disabilities. “ Too often, the ease and enjoyment of restaurant dining is not a reality for individuals with disabilities,” said Wan J. Kim, Assistant Attorney General for the Civil Rights Division. “ I commend NPC for their commitment to take the steps necessary to make its Pizza Hut restaurants accessible. These improvements will allow more Americans to participate and enjoy everyday activities with their family and friends.” The agreement resolves alleged violations of the ADA. The Justice Department initially conducted a compliance review and based on architectural surveys of a number of NPC facilities, concluded that many of the spaces and elements of the facilities were not in compliance with the ADA. NPC, while asserting that its restaurants are in compliance with the ADA, has worked actively and cooperatively with the Department to reach a settlement agreement. The agreement covers parking lots, entrances, seating areas, bathrooms, self- service counters, and other spaces and elements. It also requires NPC to complete access work to all existing NPC- owned Pizza Hut properties so that each restaurant will meet minimum, detailed criteria listed in the agreement; survey and evaluate all NPC- owned facilities that are subject to the ADA’s more stringent new construction and alterations standards at the time of their construction or alteration and bring them into full compliance; work with the landlords at the 180 facilities not owned by NPC, which are dedicated only to delivery and carry out, to ensure accessibility; and complete ADA training of all personnel involved in the implementation of the agreement, including a designated compliance officer, and a separate training of all store managers. Merrill Lynch recently purchased the franchise group from founder and owner Gene Bicknell.
AN AUCTION IS NOT A COURTHOUSE - In a recent unreported decision, the U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) rejected an appellant’s claim that the U. S. Supreme Court’s decision in Tennessee v. Lane required the Pennsylvania Office of Attorney General ( OAG) to make accommodations so that he could participate in an auction of confiscated material held by the Bucks County District Attorney’s Office. When the appellant, who uses a wheelchair and has difficulty using his hands due to arthritis and carpal tunnel syndrome, tried to attend the auction, he found the auction site inaccessible, with no parking reserved for drivers with disabilities, a gravel path to the entrance and other barriers. The U. S. District Court for the Eastern District of Pennsylvania granted the OAG’s motion to dismiss based on Eleventh Amendment immunity, and the summary judgment motion filed by the District Attorney’s office based on the appellant’s lack of standing. ( The DA’s office had submitted evidence to the Appellate Court that it had “ implemented new procedures, including the provision of handicapped parking and personal assistance to those with disabilities. The District Court decided that these changes removed any impediment to [ the appellant’s] attendance at future auctions.”) On appeal, the appellant argued that the trial court had failed to apply Lane in finding the OAG immune from liability. The Court disagreed. “ In holding that Title II is a valid exercise of such power, the Supreme Court stated that the duty to accommodate is consistent with the due process principle that a State must afford to all individuals a meaningful opportunity to be heard in its courts,” states the per curiam opinion. “ This case, however, does not implicate [ the appellant’s] right of access to the courts.” Douris v. Office of the Pennsylvania Attorney General, et al., CA3, No. 05- 1346, 4/ 6/ 06 ( http:// www. ca3. uscourts. gov/ opinarch/ 051346np. pdf). ADA News No. 146 April 18, 2006
CPAS SEEKS PROMISING PRACTICES [ from JAN E- News] - The Center for Personal Assistance Services ( CPAS) is seeking Workplace Personal Assistance Services ( WPAS) promising practice nominations from private and public employers. WPAS include work task- related assistance, such as the use of an assistant to read business documents not otherwise available electronically, a sign language interpreter for company meeting or training, and help lifting or reaching work- related items. WPAS may include personal care- related assistance such as helping an employee to access the restroom, eat or drink at work, or travel for business purposes. Do you have a promising practice to share? Tell CPAS more about it. Go to the CPAS nomination form in order to nominate the WPAS practice. The organization will follow up with a call to hear more about the success of the practice. WPAS promising practices will be developed into a series o