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ADA News No. 167 January 29, 2008
ADA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 167 January 2008
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. Recent issues of this newsletter can be found online on the Department website. All past issues of this publication are archived on the DEP internal website.
EMPLOYEE WITH CANCER NOT DISABLED - The U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) has ruled that an employee with breast cancer is not substantially limited in a major life activity and therefore is not disabled under the Rehabilitation Act. The employee, a director of nursing, brought suit alleging disability discrimination and retaliation. She underwent two surgical procedures, chemotherapy and radiation and alleged that the side effects of her cancer treatment disabled her, as she was substantially limited in the major life activities of caring for herself, performing manual tasks, lifting and working. Specifically, she alleged that she had difficulty sleeping, hot flashes, fatigue and diarrhea as well as limited use of her right arm due to complications from surgery. When she returned to work, she complained that although she could complete all of her duties, she required additional time and needed frequent breaks attributable to fatigue. The Appellate Court held that she did not have a disability because “ the most severe periods of limitation that [ the nurse] suffered during her cancer treatment were short term, temporary and contemporaneous with her treatment.” Although the limitations were severe, the Court held they were not evidence of a disability because of their short- term and temporary nature. Garrett v. University of Alabama, CA11, Nos. 05- 10833 & 05- 11110, 11/ 15/ 07.
SUPREME COURT CANCELS ADA HEARING - After agreeing to review and scheduling argument on a case that would have allowed the Court to interpret the ADA’s reassignment provision, the U. S. Supreme Court canceled oral arguments scheduled for this spring, and dismissed the case. The court said the dismissal was under Rule 46.1, which is invoked when both parties agree to a settlement. The case was accepted in order to resolve a conflict between federal circuits on the question whether the law grants an employee with a disability a right to be reassigned to another position when s/ he cannot be reasonably accommodated in any other way. The case below was Huber v. Wal- Mart Stores, CA8, No. 06- 2238, 5/ 30/ 07.
DISABILITIES WEBSITE OF THE MONTH - Accessible Employment is a “ career site dedicated to creating employment opportunities for qualified workers with disabilities.” Started by the New ADA News No. 167 January 29, 2008
Jersey Business Leadership Network, this resource is designed to provide employers with one central place to post employment positions and search resumes of qualified candidates. Twenty- first century employers will require a diverse pool of skilled candidates to accomplish their goals. Our site is dedicated to closing the gap between employers searching for qualified workers and disabled candidates searching for employment. AccessibleEmployment. org allows employers to include qualified disabled candidates in their employee recruitment efforts.
COURT VACATES UPS RULING - In a case last reported in ADA News No. 161, July 2007, the U. S. Court of Appeals for the Ninth Circuit ( WA, MT, ID, OR, CA, NV, AZ, AK, HI, GU, MP) has now decided to vacate its earlier ruling that UPS could not screen out all hearing impaired drivers and returned the case to the trial court for further proceedings. Bates v. UPS Inc., CA9, No. 04- 17295, 12/ 28/ 07 ( en banc).
AREA CALENDAR -
Working Life: Towards a Lifestyle of Employment For All; Webinar Series ( 4 Sessions); January 28- February 25, 2008; co- sponsored by Institute for Community Inclusion ( ICI), University of Massachusetts- Boston and APSE.
2008 Legal Issues Webinar: Employment and the ADA; ADA Audio Conference; first session January 22, 2008; series provides in- depth information on the ADA, Accessible Information Technology and other related topics; program is designed as a springboard to enhance an individual’s existing knowledge base or facilitate continued learning regarding regulations and trends under the ADA; more information at conference website
11th Annual Meeting of the National Birth Defects Prevention Network; February 10- 13, 2008; L'Enfant Hotel, Washington, D. C.; contact Amy P. Case at 512- 458- 7232 Ext 2814 for more information
Accommodating Older Workers: Implications for Employers; February 19, 2008; On- line Seminar; disability increases with age and as the workforce ages, individuals with disabilities will make up a larger percentage of the workforce; implementing changes in the workplace to address the needs of this population will not only help older workers, but will benefit all workers; join this session to learn more about the types of accommodations that may be needed and strategies for implementation; for more information and registration, see the conference website
21st Annual Transition & Communication Consortium on Learning & Disability ( TACCLD) Conference; February 27, 2008; Blackwell Hotel and Conference Center, Ohio State University, Columbus, OH; conference for a network of individuals exploring ways to facilitate the transition of high school students with learning disabilities, ADD/ ADHD, psychiatric disabilities, autism, and Asperger’s Syndrome to the post secondary and vocational experience; more information and registration materials are available on the TACCLD website or via e- mail
Advancing Disability Policy in an Election Year; March 2- 4, 2008; The Hyatt Regency ADA News No. 167 January 29, 2008
Hotel, Washington, DC; a pragmatic view on the unique challenges and opportunities facing the Congress and White House as the 2008 political campaign proceeds; for more information visit the conference website
National Wheelchair Basketball Association ( NWBA) Division III National Tournament; March 13- 15, 2008; Ohio State University, Columbus, OH; double elimination tournament games to be played Thursday March 13 through Saturday March 15, 2008; games will use 3 courts in the Tom W. Davis events gym; for more information, e- mail or visit the tournament website
Medical Inquiries/ Hiring/ Confidentiality; 2: 00- 3: 30 pm ET, March 4, 2008; Webinar; learn how to acquire, use and protect employee medical information to meet legitimate business needs without violating the ADA; session will review ADA and its regulations, EEOC guidance and recent case law decisions regarding acquisitions, use and protection of employee medical information, along with practical tips to assist with complying with these requirements under the ADA; for more information, see the DBTAC- Great Lakes ADA Center website
2008 National Forum to Prevent Heart Disease and Stroke; March 26- 28, 2008; The Marvin Center, George Washington University, Washington DC; contact Marsha Houston at 770- 488- 8270 for more information
Disability Law: From tenBroek to the Twenty- first Century; April 10- 11, 2008; Jernigan Institute, Baltimore, Maryland; symposium will bring together many of the nation’s top disability law scholars, practitioners, and advocates to examine the current status of both American and international disability law and will act as a forum in which to discuss future change in the disability law of the United States; for more information, contact Lou Ann Blake at ( 410) 659- 9314, extension 2221, Charlie Brown at ( 410) 659- 9314, extension 2206, or visit the conference website
Disability Harassment/ Retaliation/ Discipline; 2: 00- 3: 30pm ET, April 22, 2008; Webinar; session will review the ADA and its regulations and recent case law decisions and provide practical tips for navigating these new and complex areas of the law; for more information, see the DBTAC- Great Lakes ADA Center website
Eighth Annual Multiple Perspectives on Access, Inclusion, and Disability Conference; April 22- 23, 2008; Blackwell Hotel Conference Center, The Ohio State University, Columbus, OH; conference continues the university’s efforts to bring together a diverse audience to explore disability as both an individual experience and social reality that cuts across typical divisions of education & employment; scholarship & service; business & government; race, gender & ethnicity; for more information visit the conference website
The ADAPT Community: 25 Years of Activism and Counting; April 26- May 2, 2008; Washington, DC; celebrate ADAPT's 25th Anniversary with food, music, exhibits, history, multi- media, and faces from ADAPT past; celebration includes “ Fun Run for Disability Rights” and grassroots actions; contact ( 512) 442- 0252 or ( 303) 733- 9324 for more information, or ADA News No. 167 January 29, 2008
visit the ADAPT website
Disabilities, Healthy Aging & Independent Living: World of Possibilities Expo; May 2- 3, 2008; Montgomery County Fairgrounds, Gaithersburg, Maryland; World of Possibilities Expos focus on abilities, healthy aging and independent living and are dedicated to improving the lives of children and adults with disabilities, seniors, their families and caregivers as well as health care and education professionals; for more information visit the World of Possibilities website
Employer Best Practices: Recruitment and Hiring of People with Disabilities; May 20, 2008; On- line Seminar; session will highlight the best practices learned by the Walgreen Company and Cincinnati Children’s Hospital in regards to the recruitment and hiring of people with disabilities; participants will learn what it took within these organizations to mobilize administration, management as well as all employees in support of this effort and the benefits that they have realized as a result; for more information and registration, see the conference website
Qualified as Related to Reasonable Accommodations such as Leave, Reassignment and Job Modifications; 2: 00- 3: 30pm ET, June 3, 2008; Webinar; session will review the ADA and its regulations, EEOC guidance, and recent case law decisions that focus on how certain accommodation requests relate to employees’ abilities to perform essential job functions; for more information, see the DBTAC- Great Lakes ADA Center website
People on the Move: Using All Transportation Options ( ADA and Beyond...); June 2- 3, 2008 ( Apply by March 27); Washington, D. C.; free “ train the trainer” initiative to increase accessible transportation in your community; two- day training initiative offers teachers and trainers the basic tools needed to expand community transportation options; for more information visit the training website
Stop A Lifetime of Problems: Prevent Childhood Lead Poisoning; June 3- 5, 2008; Crowne Plaza Hotel & Resort, Columbus, Ohio; contact Melody Sexton at 614- 728- 9453 for conference information
Accommodating Employees with Psychiatric Disabilities in the Workplace; June 17, 2008; On- line Seminar; psychiatric conditions are the leading charge category for complaints filed with the EEOC; data gathered by the National Institute of Mental Health indicates that more than one in five American adults experiences some diagnosable mental disorder in a given year; session will address the realities of accommodating individuals with disabilities in the workplace and offer practical solutions for employers; for more information and registration, see the conference website
2008 UCP Annual Conference: Believable Hope - Life Without Limits; June 18- 21, 2008; Hyatt Regency on Capitol Hill, Washington, D. C.; focus on Believable Hope - Life without Limits as UCP demonstrates how to make this theme a reality; for more information e- mail , call ( 800) 872- 5827 or visit the UCP website
ADA News No. 167 January 29, 2008
Rehabilitation Engineering and Assistive Technology Society of North America ( RESNA) 2008 Annual Conference; June 26- 30, 2008; Hyatt Regency Crystal City, Arlington, Virginia; conference is an interdisciplinary gathering of individuals and companies who share a common interest in rehabilitation engineering, assistive technology and disability issues in general; conference schedule ( to be announced at a later date) will include workshops and plenary sessions; dozens of meetings of committees, shared interest groups and professional specialty groups; for more information, visit the conference website
2008 National Career Development Association Global Conference ( NCDA) Conference; July 8- 11, 2008; Hyatt Regency Capitol Hill, Washington, DC; for more information visit the National Career Development Association Website
ADA Update: 18 Years Later; July 15, 2008; On- line Seminar; listen to representatives of federal agencies present an update on their litigation, technical assistance and enforcement efforts over the past year; participants will have an opportunity to pose questions to the presenters regarding issues in their own workplace or community; for more information and registration, see the conference website
ADA Coverage Beyond Actual Disability: Regarded As, Record Of and Association Disability; 2: 00- 3: 30pm ET, July 22, 2008; Webinar; session will review the ADA and its regulations; EEOC guidance and recent case law, as well as provide employers with information that will help them to avoid pitfalls that may be encountered when navigating this often overlooked area of the law; for more information, see the DBTAC- Great Lakes ADA Center website
Nutrition Connections: People, Programs, Science, Community: FNS National Nutrition Education Conference; August 3- 5, 2008; Hyatt Regency Crystal City, Arlington, VA; contact Donna Blum- Kemelor at 703- 305- 2017 for more information, or visit the conference website
ADA and Website Accessibility; 1: 00pm- 2: 00pm CT, August 11, 2008; On- line Seminar; courts have reached different conclusions as to whether websites are covered under the ADA; session will discuss recent legal developments and their potential implications; e- mail HERE for more information and registration
Direct Threat/ Safety in the Workplace; 2: 00- 3: 30pm ET, September 23, 2008; Webinar; session will review the ADA and its regulations, EEOC guidance and recent case law and provide employers with information about conducting an individualized assessment and the role of reasonable accommodations to address a potential threat health and safety in the workplace; for more information, see the DBTAC- Great Lakes ADA Center website
Learning and Accessibility; 1: 00pm- 2: 00pm CT, September 29, 2008; On- line Seminar; seminar will address strategies for businesses to improve their knowledge and implementation of accessible e- Learning; e- mail HERE for more information and registration
SCHOOL MISTREATED HANDICAPPED SINGER, GRANDFATHER SAYS ( by Carrie Cassidy, The ADA News No. 167 January 29, 2008
Patriot- News, 1/ 1008) - Before his grandson’s concert Thursday night, Milton Watson argued with administrators at Susquehanna Township Middle School for what he called “ discriminating” treatment of his grandson. ( Thanks, Susan. - Ed.)
CITY IS A ROUGH RIDE FOR WHEELCHAIR USERS ( by Daniel Rubin, Philadelphia Inquirer, 1/ 28/ 08) - Clifford Roberts, a violin maker, had to retire because of a neuromuscular disease. “ I find that Philadelphia is an extremely difficult city to get around,” he said. Read the rest of this troubling story HERE. Also regarding the City of Brotherly Love, go to the Department of Justice website to see the settlement agreement of a Title II action by John Gill Smith and the United States brought against the City of Philadelphia.
AROUND THE WORLD - The National Council on Disability’s International Watch advisory committee met on November 1st. Discussion included updates from the United States Department of State and the United States Agency for International Development on their current disability inclusion efforts, including the work being done to more fully incorporate disability within the United States Country Reports on Human Rights Practices. The discussion also included the latest countries to sign the United Nations Convention on the Rights of Persons with Disabilities. As the time of this writing, 118 countries have signed the Convention and 7 countries have ratified. Three countries have also ratified the Optional Protocol. The Convention will enter into force on the 30th day following the 20th ratification or accession. The Optional Protocol will enter into force on the 30th day following the 10th ratification or accession.
NCD’S CRIME VICTIMS UPDATE - On November 30, during the National Council on Disability’s Boston quarterly meeting, the NCD unanimously approved a motion in support of the Crime Victims with Disabilities Act of 2007 ( CVWD). On December 5, NCD chairperson John R. Vaughn carried out that motion by writing to the U. S. Senate Committee on the Judiciary in support of the CVWD. The NCD is gratified that Senate Bill 2237, the Crime Control and Prevention Act, which was referred to the Committee on the Judiciary on October 25, includes Title IX, Subtitle A, the CVWD. NCD is committed to the same goals espoused in the CVWD. On May 21, 2007, NCD issued a joint statement with the Association of University Centers on Disabilities and the National Center for Victims of Crime — Breaking the Silence on Crime Victims with Disabilities in the United States . Upon releasing this joint statement, the NCD announced that the ultimate goal of this partnership was to foster greater public awareness about crime victims with disabilities and to forge a national commitment to better serve this particularly vulnerable population. The NCD, along with its partners, calls for expanded research to establish the prevalence and impact of crime against persons with disabilities. The statement also calls for greater public education to raise awareness about the circumstances and needs of persons with disabilities who have been victimized by crime; public policy changes that integrate crime victims with disabilities and their needs into the current framework of federal, state, and local services; increased access to programs and services that will help crime victims with disabilities rebuild their lives; and a national leadership forum that will serve as a unifying and proactive voice for crime victims with disabilities.
RESOURCES - Some disability/ employment- related resource material recently added to the catalog. 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. 167 January 29, 2008
The November and December editions of the National Council on Disability Monthly Bulletin is now available online.
The January 2008 edition of the NCPAD News, 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.
The December 2007 edition of Washington Watch, a publication of The Arc and United Cerebral Palsy, is now available on line. Washington Watch provides in- depth news and analysis on disability policy from Washington. ( This link opens a Word document.)
The December 2007 issue of Tapping Technology, a quarterly newsletter from the Maryland Department of Disabilities is currently available on the MD TAP website.
News and Notes is the monthly newsletter of The Family Center on Technology and Disability. The newsletter is devoted to a different topic each month. The December 2007 edition contains information about “ Free Open Source Assistive Technology.”
The latest edition of the bi- monthly newsletter of the ADA& IT Information Center for the Mid- Atlantic Region, is now available online with disability- related resources, news, and many other items of interest.
The latest edition of In Focus, the newsletter of the U. S. Department of Labor, includes up- to- the- minute news about the Department and the Secretary of Labor.
Health & Disability Digest is a quarterly, online publication highlighting the latest news from the National Center on Birth Defects and Developmental Disabilities ( NCBDDD). It includes updates on RTOI projects and fellowships, information and resources on public health and disabilities services, and events for individuals with disabilities, family members, professionals and other stakeholders. The Winter 2008 edition is now online.
AUCDigest is a monthly newsletter that highlights the news, initiatives, and events occurring throughout the American University Centers on Disability ( AUCD) Network and the disability community. It also includes news from the AUCD National Office, including a regular message from the president of AUCD, funding opportunities, and employment opportunities. The latest edition is available online.
Issue No. 22 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 now available online. This month’s issue includes reports on projects in new York City’s Madison Square Garden, increasing accessibility at Pennsylvania’s Swarthmore College and an update on the lawsuit against the University of Michigan.
Enforcing the ADA: A Status Report from the Department of Justice, October - December 2006 covers the ADA activities of the Department of Justice during the fourth ADA News No. 167 January 29, 2008
quarter of 2006. This report, previous status reports, and a wide range of other ADA information, including the consent decrees and formal settlement agreements mentioned in this report, are available through the Department’s ADA Home Page.
Planning for Inclusion: Implementing an Accessibility Management Program in a Parks and Recreation Business Model, a new document written by Jennifer Skulski of the National Center on Accessibility, describes how people with disabilities are still experiencing significant barriers at recreation facilities and parks and offers insight into how an accessibility management program can be successful.
Entering the World of Work: What Youth with Mental Health Needs Should Know about Accommodations? is a new Department of Labor fact sheet that provides information on disclosure, accommodations and examples of reasonable accommodations for youth with mental health needs entering the workforce.
New Publication from the National Institute of Mental Health on Eating Disorders - This booklet describes symptoms, causes, and treatments of eating disorders and where to find information and help.
Building on the Ticket: A New Paradigm for Investing in Economic Self- Sufficiency for People with Significant Disabilities. Final report from the Ticket to Work Panel to the President and Congress. Includes five recommendations for changes to SSA programs.
EEOC Report: Federal Employment of Individuals with Targeted Disabilities - The U. S. Equal Employment Opportunity Commission ( EEOC) this month issued a comprehensive report addressing strategies to reverse the declining participation rate of federal employees with targeted disabilities. The full text of the report, Improving the Participation Rate of People with Targeted Disabilities in the Federal Work Force, is available on the EEOC’s web site.
SELF- RELIANCE SWINGS INTO PLACE: MECHANICAL BACKPACK HELPS WHEELCHAIR RIDERS REACH THEIR BELONGINGS ( by Tim Blangger, The Morning Call, 12/ 31/ 07) - In 1993, Jorge Letechipia had an idea. While working as a rehabilitation technician at Allentown's Good Shepherd Rehabilitation Hospital, he noticed many wheelchair- bound patients could not reach the backpacks fastened behind their chairs. Why not design a device that would make it easier for patients to add or remove items from the backpacks, without having to ask someone for help? The basic idea of the Swing Pack was born.
U. S. SENATORS ANNOUNCE APPROVAL OF THEIR LEGISLATION TO EXTEND FAMILY, MEDICAL LEAVE FOR FAMILIES OF WOUNDED SOLDIERS ( from WorkersCompensation. com) - Senators Chris Dodd ( D- CT) and Hillary Rodham Clinton ( D- NY) announced that the U. S. Senate has approved their legislation, The Support for Injured Servicemembers Act, as part of the Department of Defense authorization conference report. Having now been approved by both chambers of Congress, the bill now goes to the President's desk to be signed into law.
PAUL G. HEARNE AWARD - Nominations are being sought for the American Bar Association’s annual Paul G. Hearne Award for Disability Rights. Anyone may nominate an individual or an organization that has made significant contributions to furthering the rights, dignity, and access to justice for people with disabilities. Examples of eligible organizations include: ( 1) disability advocacy organizations; ( 2) a law firm or law practice; ( 3) a state or local bar association; ( 4) a nonprofit legal services program; ( 5) a law school clinic or academic- affiliated program; or ( 6) a law- related program providing representation for people with disabilities. Self- nominations are not permitted. A nomination form is available on the ABA website.
TOP DISABILITY STORIES OF 2007 - The votes have been counted and the results are in. Inclusion Daily Express readers have chosen the top disability rights stories of 2007. The stories are in no particular order, according to Editor Dave Reynolds.
SUMMER INTERNSHIPS FOR COLLEGE STUDENTS WITH DISABILITIES - Apply for an Emerging Leaders Summer Internship. Application deadline is January 31, 2008. Eligible applicants must have a qualified disability under the ADA, have completed at least 60 university- level credits, have at least a 3.0 GPA, maintain full- time student status for the semester following the internship ( graduating seniors immediately continuing to graduate school may apply), and be US citizens or legal aliens.
SUPER BOWL ( AD) PREVIEW - The competition for best Super Bowl ad is often better than the game itself. Why wait until Sunday? Get a first look now at Pepsi’s new “ Bob’s House” ad scheduled to be broadcast during the game. The ad was created by EnAble, a network in Pepsi which supports diversity and the inclusion of persons with different abilities.
COMING UP NEXT MONTH - February is a short but full month. You may actually need the extra day this year in order to mark American Heart Month, Wise Health Consumer Month, National Children’s Dental Health Month, AMD/ Low Vision Awareness Month, Kids E. N. T. ( Ears, Nose, Throat) Month, Age- Related Macular Degeneration/ Low Vision Awareness Month, Prenatal Infection Prevention Month; February 3- 9 is National Burn Awareness Week, 4- 8 is Pride in Food Service Week, 7- 14 is Congenital Heart Defect ( CHD) Awareness Week, 10- 16 is National Cardiac Rehabilitation Week, Duchenne Muscular Dystrophy Awareness Week, Cardiovascular Professionals Week, National Heart Failure Awareness Week, National Condom Week, National Children of Alcoholics Week and National Child Passenger Safety Awareness Week; 16- 23 is National Porphyria Week, 24- March 1 is National Eating Disorders Awareness Week; February 1st is Give Kids A Smile Day and National Women’s Heart Health Day, the 3rd is National Wear Red Day, the 6th is National Girls and Women in Sports Day, the 11th is World Day of the Sick, the 14th is National Condom Awareness Day and National Blood Donor Day, the 15th is National Women’s Heart Health Day.
ADA News No. 167 January 29, 2008
ADA News No. 168 February 29, 2008
ADA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 168February 2008
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. Recent issues of this newsletter can be found online on the Department website. All past issues of this publication are archived on the DEP internal website.
FOURTH CIRCUIT AFFIRMS JURY VERDICT FOR EMPLOYEE PERCEIVED AS DISABLED - The U. S. Court of Appeals for the Fourth Circuit ( WV, VA, NC, SC, MD) has affirmed a $ 197,000 jury verdict against a South Carolina manufacturer, Phoenix Specialty Manufacturing Company, for firing a shipping supervisor it “ regarded as disabled” in violation of the Americans with Disabilities Act. This case is a good example of the role e- mail can play in a “ regarded as” claim. The company’s president stated in an e- mail to an assistant that the supervisor “ qualifies for ADA designation.” Even though the e- mail was sent more than a year before the supervisor was terminated, the Court found that it was an early example of how the company erroneously believed the supervisor had a disability, “ a perception that continued … until his termination,” according to the Court. The employer also was found to have perceived the supervisor as disabled because it ignored a doctor’s note releasing him to work without restrictions, avoided him whenever possible, and expressed a belief that he was substantially limited in his ability to see, use a computer, and perform manual tasks. Although the district court found that the company owed ( and breached) a duty of reasonable accommodation to the supervisor even though he was not actually disabled, the Fourth Circuit refused to affirm on that ground. Wilson v. Phoenix Specialty Mfg. Co., CA4, No. 06- 1818, 1/ 23/ 08.
PUNITIVE DAMAGES AWARD AFFIRMED BY FOURTH CIRCUIT - The U. S. Court of Appeals for the Fourth Circuit in January affirmed a $ 100,000 punitive damage award to a former FedEx package handler who is deaf. The employee is unable to either speak or read lips, but is fluent in American Sign Language which is his primary language. While participating in an EEOC conciliation process, FedEx discharged the employee, citing poor attendance as the reason for its decision. The handler sued. The federal trial court awarded him $ 8,000 in compensatory damages and $ 100,000 in punitive damages, premised on a jury finding against FedEx for failing to reasonably accommodate him under the ADA. The award in the case was based on the employee’s approximately three years of employment, during which time the package handler was routinely denied interpreter services for employee meetings, training, and safety briefings despite repeated requests. The Court rejected ADA News No. 168 February 29, 2008
FedEx’s arguments that the award was excessive, finding that FedEx, despite awareness of its obligations under the ADA and the employee’s need for accommodation, acted with “ reckless indifference” to the employee’s ADA rights. EEOC v. Federal Express Corporation, d/ b/ a FedEx Express, CA4, No. 06- 1724, 1/ 23/ 08.
DISABILITIES WEBSITE OF THE MONTH - “ I feel like I am independent,” “ I don’t need to depend on my mom and dad to take me places,” and “ Now I can ride the bus to get to my job and to the movies with my friends.” These are some of the reactions from youth and adults with disabilities who have gained independence and mobility due to the simple fact that they can now get a ride to work, school, the mall or the library. The challenge of coordinating transportation services so that individuals with disabilities have an easier time accessing transportation in their communities is one that is being addressed by the federal government. As a result of an Executive Order issued in 2004, the Federal Interagency Coordinating Council on Access and Mobility has launched United We Ride. United We Ride is an initiative that includes eleven federal departments working together to simplify access, reduce duplication, and enhance cost efficiencies in community human service transportation.
HOUSE HOLDS ADA RESTORATION ACT HEARING - The U. S. House of Representatives Committee on Education and Labor this month heard testimony on legislation that would change two major elements of the Americans With Disabilities Act. Intended to remedy court decisions that have significantly narrowed the scope of the ADA, the ADA Restoration Act ( H. R. 3195) would change the definition of “ disabled” by eliminating the requirement that individuals be substantially limited in a major life activity. It would also require that courts ignore mitigating measures when determining whether an individual qualifies as disabled.
AREA CALENDAR -
2008 Disability Policy Seminar: Advancing Disability Policy in an Election Year; March 2- 4, 2008; Hyatt Regency Washington Capitol Hill, Washington, DC; AUCD, The Arc of the United States, United Cerebral Palsy, AAIDD, and the National Association of Councils on Developmental Disabilities are joining together again to host the 2008 Disability Policy Seminar; the organizations will look to their extensive grassroots networks to advocate in a bipartisan manner for national public policies promoting the full inclusion of people with disabilities in our society; see the conference website for more details
Art Show & Reception; 6: 00 PM - 8: 00 PM, March 13, 2008; Pittsburgh, PA; the second show presented by the 2008 Centre Art Gallery is Earth & Water by photographer Nancy Spear, Ph. D. whose work to date has centered on land and marine scapes with particular interest in the natural harmony of colors and shadows; click here for more information about Nancy Spear and her work; light refreshments will be provided; for more information about the reception, please email info@ ucppittsburgh. org or call Sheila Smith at ( 412) 683- 7100
The Nature and Scope of Discrimination in Hiring Under ADA Title I; March 18, 2008; On- line Seminar; over 20,000 allegations of workplace discrimination specific to hiring were investigated and closed by the EEOC through 2005; researchers have uncovered some surprising facts about the nature and scope of hiring discrimination related to characteristics ADA News No. 168 February 29, 2008
of the charging parties, employers, and outcomes; these findings and their ramifications for the implementation and future of ADA will be discussed; for more information and registration, see the conference website
ADA Transportation: General Rules Applying to All Modes of Transportation; March 26, 2008; Webcast; focus on stop announcements and equipment maintenance; information at conference website
UCP Central Pennsylvania Magic Night 2008: The White Tie Event; 6: 00 PM, March 29, 2008; Hilton Harrisburg & Towers, Harrisburg, PA; join UCP as they celebrate UCP Central PA’s 22nd annual Magic Night with The White Tie Event; join us for The White Tie Event and help advance the goal of seeing every individual— no matter what their age or ability— grow and develop to their full potential; contact Casey Hurst at 1- 800- 998- 4827 for information
Abilities Expo 2008; March 28- 30, 2008; New Jersey Convention and Expo Center, Edison, New Jersey; Abilities Expo 2008 will feature the latest products and services designed to enhance the lives of people with disabilities; exhibit hall will be packed with vendors, live equipment demonstrations, and special events throughout the event; accessible workshop programs consisting of consumer and professional tracks, with certificates of participation available to students, and education and healthcare professionals are also available; more information at conference website, via e- mail or by telephone to 212- 895- 8231
Aging in America: 2008 Conference of the National Council on Aging ( NCOA) and the American Society on Aging ( ASA); March 26- 30, 2008; Marriott Wardman Park Hotel and Omni Shoreham Hotel, Washington, DC; the most dynamic educational conference and networking opportunity in North America for professionals in the field of aging; a diverse, multi- disciplinary community of more than 3,500 professionals from the fields of aging, healthcare, and education, along with business leaders from across the United States; for information, visit the conference website
Active Living Research Annual Conference: Connecting Active Living Research to Policy Solutions; April 9- 12, 2008; The Madison, a Loews Hotel, Washington, DC; breakfast roundtable discussions, multiple keynote speakers, plenary and concurrent presentations, as well as policy- relevant panel presentations are present throughout the conference agenda; for more information, call 619- 260- 5534, fax 619- 260- 1510; e- mail ALR@ projects. sdsu. edu, or visit the conference website
All Star Labor Basketball Classic; 1: 00 p. m. tip- off, Sunday, April 13, 2008; St. Joseph's University, Philadelphia, PA; experience on- the- court action when the Philadelphia area’s best high school seniors ( boys and girls) match talents in two “ city vs. suburbs” basketball games, sponsored by Philadelphia’s Organized Labor; in its 21st year, the All Star Labor Classic offers a day of fun for the entire family; there will be an exhibition game, cheerleaders, prize giveaways and more; in addition to benefitting children and adults with disabilities in the Greater Philadelphia area, this event awards scholarships to the student athletes for their continuing education; tickets are free for students, $ 5 for adults; call UCP’s Development Department for tickets and information at 215- 242- 4200, ext. 289 or email ADA News No. 168 February 29, 2008
seucp@ ucpphila. org
UCP Yard Sale; 8: 00 AM - 3: 00 PM, April 18, 2008; Hanover Office, UCP of South Central PA, 788 Cherry Tree Court, Hanover, PA; sale benefits Children’s Programs of United Cerebral Palsy of South Central PA; lots of gently used children’s clothing, toys, and household items priced to sell; for more information, please contact Special Events Coordinator at 717- 632- 5552
Putting the Pieces Together: PEPNET (“ Postsecondary Education Programs Network”) Biannual Conference; April 15- 18, 2008; Hyatt Regency, Columbus, Ohio; conference participants typically include administrators, counselors, interpreters, tutors, and faculty members from disability services, student development, developmental studies and college- level courses; for more information, for information, contact Marcia Kolvitzat by phone at ( 865) 974- 0607, by e- mail to pepnet- south@ utk. edu, or visit the Pepnet- South Website
Assistive Technology Fair; 2: 00 PM - 7: 00 PM, April 24, 2008; Pittsburgh, PA; the UCP Family Advocacy Network will be hosting an Assistive Technology Vendors Fair that will enable visitors to see the newest technology first hand and learn about services from the experts; vendors representing a variety of products will be present to answer any AT questions; there will be two speakers during the day, one who will address AT funding sources and the other will discuss choosing a successful communication device; for more information, contact Connie Campbell at ( 412) 683- 7100 x2211
2008 Mobility Planning Services Institute; April 21– 24, 2008; Renaissance Washington Hotel, Washington, DC; sponsored by Project Action; for more information go to the conference website
UCP 5K Corporate Run/ Walk; April 24, 2008; Philadelphia Museum of Art, Philadelphia, PA; more than 1,200 participants representing over 40 Philadelphia area companies will gather on the steps of the Philadelphia Museum of Art for a five- kilometer ( 3.1 mile) race along MLK Drive; runners and walkers of all ages and abilities are encouraged to participate; team and individual registration will be accepted; prizes will be awarded in individual and team categories; in addition to a beautiful route along the river, there will be lots of fun and food on the plaza; new this year, UCP’s Young Leadership Board will be hosting an After Party sponsored by The Graham Company at Jack’s Firehouse; register online or print a UCP 5K registration brochure
ADA Paratransit; April 30, 2008; Webcast; part of DREDF Transportation Series; for more information, see the conference website
Walk for a Healthy Community; May 3, 2008; Heinz Field, Pittsburgh, PA; this year UCP of Pittsburgh is participating in the Walk For A Healthy Community presented by HIGHMARK; event benefits over 30 human service non- profits; participants can enjoy a 1 mile fun walk or 5K walk around the North Shore of Pittsburgh; registration begins at 7: 45 a. m. with the 5K walk beginning at 9 a. m. and the 1 mile fun walk at 9: 15 a. m.; participants will be allowed to view the Coca Cola Great Hall in Heinz Field; all of the proceeds that UCP of Pittsburgh raises ADA News No. 168 February 29, 2008
this year will be directed to the UCP Kids Program; register online HERE, or call ( 412) 683- 7100 x2153 for more information
Early Stage Town Hall Meetings - Alzheimer’s Association; May 12, 2008; Grand Hyatt Hotel, Washington, D. C.; if you have early- stage Alzheimer's or a memory disorder, joining the Alzheimer's Association at a gathering for people with dementia to talk about living with the disease; for more information visit the conference website
Public Policy Forum - Alzheimer’s Association; May 12- 14, 2008; Grand Hyatt Hotel, Washington, D. C.; Alzheimer advocates from across the country gather at the Forum to learn about key policy priorities and meet with Members of Congress to discuss priority Alzheimer issues; for more information visit the conference website
UBS Motor Cars Under the Stars; June 4, 2008; Cairnwood in Bryn Athyn, PA; sponsored by UBS Financial Services, the Philadelphia Area Jaguar Dealers and the Land Rover Retailers of the Delaware Valley, this event consistently attracts close to 700 attendees; proceeds will be used to support United Cerebral Palsy Family Resource Services that provide support to families when they have unexpected emergencies or need to acquire assistive technology or adaptive equipment; guests will stroll the grounds of industrialist John Pitcairn’s estate and view a spectacular display of classic automobiles from private collections, along with modern- day classics from Jaguar and Land Rover; for sponsorship, advertising and ticketing information, please contact Willa Kravitz at 215- 248- 7609
2008 National High School Center Summer Institute: NHSC Conference; June 18- 20, 2008; The Madison Hotel, Washington, DC; for more information visit the NHSC Website
2008 UCP Benefit Golf Tournament; June 23, 2008; North Hills Country Club, North Hills, PA; the 2007 UCP Benefit Golf Tournament had close to 100 golfers on the course at and raised $ 55,000 for UCP programs; for more information about this year’s event, contact the Development Department at 215- 242- 4200, ext. 289 or e- mail seucp@ ucpphila. org
Community Partners Concert; 8: 00 PM, June 26, 2008; Heinz Hall, Pittsburgh, PA; the Pittsburgh Symphony Orchestra will be holding its annual Community Partners Concert, this year featuring Isaac Hayes and the 2008 Sphinx Competition Winner, conducted by Lawrence Loh; ticket proceeds benefit your Community Partner of choice and go on sale March 1st; for tickets, call PSO at ( 412) 392- 4900 or 800- 742- 8560, or visit the Symphony website
WCD Expo; July 11- 12, 2008; Greater Reading Expo Center, Reading, PA; WCD Expo and Conference is dedicated to improving the lives of those with developmental and physical disabilities, their families and professionals who work with them; for more information, contact Mark Dineen at 201- 722- 9233, ext 114; or visit the conference website
LIFE’S WORK: I'M ILL, BUT WHO REALLY NEEDS TO KNOW? ( by Lisa Belkin, NYTimes, 2/ 21/ 08) - Many Americans struggle to decide whether or not they should inform their boss or colleagues about a chronic illness. Read this fascinating article from the New York Times HERE.
ADA News No. 168 February 29, 2008
NCD SAYS OLDER YOUTH WITH DISABILITIES FALLING THROUGH CRACKS IN FOSTER CARE SYSTEM - The National Council on Disability ( NCD) has released a new report, Youth with Disabilities in the Foster Care System: Barriers to Success and Proposed Policy Solutions. The report focuses on the unique challenges older youth with disabilities face as they negotiate the foster care system. According to NCD Chairperson John R. Vaughn, “ The goal for our country’s youth is to live healthy, happy lives and to become self- sufficient, contributing members of society as adults. However, there are subsets of youth who cannot reach these goals with ease. These youth need additional supports to assist them in their journey toward a healthy adulthood, as they are more vulnerable than the ‘ average’ youth and thus are more apt to fall through the cracks during their journey. Youth development researchers have determined that some specific youth populations are more vulnerable than others. This report examines one exceptionally challenged group in particular: older youth ( specifically, preteens through young adults) with disabilities who are involved in the foster care system. The child welfare community generally accepts the fact that, while the American foster care system has come a long way in recent years, there is still much to be done to ensure the health and well- being of the children and youth it serves. Likewise, the disability community has seen great improvements in recent years but still advocates for additional needed change. But what is often overlooked among experts in both of these realms is the idea that foster care is indeed both a child welfare issue and a disability issue. This is due to the alarmingly high numbers of foster youth with mental, developmental, emotional, learning, and physical disabilities. The purpose of this report, therefore, is to shift the lens through which youth advocates and service providers view the importance of ensuring the well- being of foster youth. This new lens asserts the importance of understanding the prevalence of disability among foster youth and better ascertaining who should be held accountable for this uniquely challenged and often under- served population,” Vaughn concluded.
AROUND THE WORLD - British Triathlon launches groundbreaking National Disability Championship ( RunnersWeb. com, 2/ 27/ 08) - British Triathlon will become the first Governing Body in the world to offer a national event exclusively for disabled triathletes when the British Disabled Triathlon Championships supported by Wrigley’s Airwaves gets underway on 1 June. The race will take place as part of the Rother Valley Triathlon festival held in Rother Valley Country Park, just outside Rotherham in South Yorkshire. The inclusion of the Disabled Championships is a culmination of years of hard work and recent development projects supported by British Triathlon’s Premier Sponsor, Corus. British Triathlon and event organisers, One Step Beyond Promotions, will be catering for all categories of disability, which requires all of the athletes needing to be classified. This is either carried out weeks before the event or during the registration process. Organising a race of this nature also has its own issues to overcome, for instance it is surprising how much space a racing wheel chair needs in transition. Read the rest of this story HERE.
COMMUNITY HEROES NOMINATIONS NEEDED - UCP of Pittsburgh is accepting nominations for the Community Heroes Awards Dinner to be held Wednesday, October 22, 2008, at The Westin Convention Center Pittsburgh. Each year, UCP honors Community Heroes, individuals or associations, who have enhanced the quality of life for people in our community. They have increased awareness of issues confronting people with disabilities or brought about meaningful change in the community. Nomination forms should be completed and returned to Marci Sloan, Development Director, by April 1, 2008. ( Please note: Individuals do not have to have a disability in order to be nominated.) If you have any questions, please contact Marci Sloan at ( 412) 683- 7100 ADA News No. 168 February 29, 2008
ext. 2153 or at msloan@ ucppittsburgh. org.
RESOURCES - Some disability/ employment- related resource material recently added to the catalog. 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).
The January edition of the National Council on Disability Monthly Bulletin is now available online.
The February edition of the NCPAD News, 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.
The March 2008 issue of Tapping Technology, a quarterly newsletter from the Maryland Department of Disabilities is currently available on the MD TAP website.
News and Notes is the monthly newsletter of The Family Center on Technology and Disability. The newsletter is devoted to a different topic each month. The January 2008 edition contains information about the challenge of making sure that children with disabilities and their Assistive Technology are a match.
The latest edition of the bi- monthly newsletter of the ADA& IT Information Center for the Mid- Atlantic Region, is now available online with disability- related resources, news, and many other items of interest.
The Winter 2008 Edition of ADA in Focus, the quarterly magazine of the ADA Information Center for the Mid- Atlantic Region, is currently available. Featured is an article about planning accessible events.
The latest edition of In Focus, the newsletter of the U. S. Department of Labor, includes up- to- the- minute news about the Department and the Secretary of Labor.
Health & Disability Digest is a quarterly, online publication highlighting the latest news from the National Center on Birth Defects and Developmental Disabilities ( NCBDDD). It includes updates on RTOI projects and fellowships, information and resources on public health and disabilities services, and events for individuals with disabilities, family members, professionals and other stakeholders. The January 2008 edition is now online.
Legislative News InBrief is a weekly publication of AUCD, available online HERE.
Life Without Limits is the monthly e- newsletter of United Cerebral Palsy ( UCP), free from the organization's website. The February 2008 issue is now available and includes an article about D. J. Gregory, a young man with CP who has decided to walk every PGA Tour event during the 2008 regular season ( 38 weeks of travel and 37 events) and blog about it.
ADA News No. 168 February 29, 2008
UCPeople is a weekly newsletter designed for UCP affiliates. The latest edition includes a story about ABC’s hit show “ Extreme Makeover: Home Edition.”
Download the latest edition of UCP’s weekly Capitol Insider and read about what is happening in disability public policy in Washington, DC.
AUCDigest is a monthly newsletter that highlights the news, initiatives, and events occurring throughout the American University Centers on Disability ( AUCD) Network and the disability community. It also includes news from the AUCD National Office, including a regular message from the president of AUCD, funding opportunities, and employment opportunities. The latest edition is available online.
The National Employment Law Institute issues periodic OFCCP/ Affirmative Action Newsletters intended to provide periodic updates of developments at the Office of Federal Contract Compliance Programs ( OFCCP) regarding Affirmative Action compliance so that contractors can be aware of these issues. The February 2008 edition of the newsletter is now available. ( This link opens a PDF document.)
Sidewalk Videos from U. S. Access Board Available Online - A four- part video series on accessible sidewalks that illustrates issues and considerations in the design of sidewalks is now available online through the Access Board’s website. The videos are open- captioned and incorporate running descriptive audio. To access these videos, go to the Board website.
THE VOICE ( Volume Fourteen, Issue Three) - a periodical about UCP- related activities in and around Pittsburgh, published by UCP Pittsburgh, this newsletter is available online.
Disabled sue for access to GGRNA lands including properties in Pacifica ( by Kyveli Diener, MediaNews, 2/ 20/ 2008) - Disability rights activists initiated a class action federal lawsuit against the Golden Gate National Recreational Area. The GGNRA provides Bay Area residents with sprawling beaches, parks, and historical landmarks, including Milagra Ridge, Mori Point and Sweeney Ridge in Pacifica and Phleger Estate in San Mateo County. Frustration over a lack of special access for those with disabilities has prompted the federal court suit brought against the park by disability- rights advocates. GGNRA officials said they have been working with the advocates and hope to continue to do so. Read how they are doing HERE.
U. S. PARALYMPICS: BOSTON BRUINS ALUMNI TO PARTICIPATE IN 24- HOUR HOCKEY GAME; SPORT OF ICE SLEDGE HOCKEY TO BE FEATURED ( from Assistive Technology News, 2/ 26/ 08) - Colorado Springs, Colorado - Boston Bruins alumni will participate in a 30- minute ice sledge hockey match February 29 at the New England Sports Center in Marlborough, Mass. The game will give fans a glimpse at ice sledge hockey, a sport that will inhabit the same venue next month as the 2008 International Paralympic Committee ( IPC) Ice Sledge Hockey World Championships, March 27 – April 5 come to Marlborough. The ice sledge hockey game featuring Bruins alumni will serve as an exciting component of the first- ever 24- Hour Hockey Game, in which one 30- minute running- time game in each of the nation's 50 states will be played consecutively. The first game starts in Maine at noon EST on Friday, February 29. The IPC Ice Sledge Hockey World Championships competition will host over 150 athletes with physical disabilities and will be held by U. S. Paralympics, a division of the U. S. Olympic Committee, in collaboration with Massachusetts Hockey. It will also serve as the most critical stop on the road to the 2010 Paralympic Winter Games in Vancouver, Canada. Charlie Huebner, Chief of U. S. Paralympics, said the 24- Hour Hockey Game will provide great momentum for the IPC Ice Sledge Hockey Championships and will also help create awareness about the sport of sledge hockey. “ The fact that this illustrious game will be featured in Marlborough is invaluable to the promotion of Paralympic sport,” Huebner said. “ It gives the general public the opportunity to learn more about the sport of ice sledge hockey, and it provides Americans with physical disabilities the ability to learn about the many opportunities that exist in sport.” For the 24- hour game in each state, one team has been designated as " Stars" and one team as " Stripes." A national running score will be kept at the event website. Players of all ages, backgrounds and skill sets will participate in the event. The mite ( 8 & Under), squirt ( 10 & Under), pee wee ( 12 & Under), bantam ( 14 & Under), midget ( 18 & Under), high school, junior, college ( non- varsity), disabled, inline and adult levels of hockey will be represented, spanning across 100 teams. Just as in ice hockey, ice sledge hockey is played with six players ( including a goalie) at a time. Players propel themselves on their sledge by use of spikes on the ends of two three- foot- long sticks, enabling a player to push himself as well as shoot and pass ambidextrously. Rinks and goals are regulation Olympic- size, and games consist of three 15- minute periods.
COMING UP NEXT MONTH - March is National Colorectal Cancer Awareness Month, National Kidney Month, National Nutrition Month, National Poison Prevention Month, American Red Cross Month, National Chronic Fatigue Syndrome Awareness Month, National Eye Donor Month, Hemophilia Month, Mental Retardation Awareness Month, Multiple Sclerosis Education & Awareness Month, National Professional Social Work Month, Save Your Vision Month, Sports Eye Safety Month, Workplace Eye Safety Month, National Brain Injury Awareness Month, Child Life Month, and National Endometriosis Awareness Month; March 2- 8 is National Patient Safety Awareness Week, Juvenile Arthritis Awareness Week, Dental Assistants Recognition Week and National Collegiate Health and Wellness Week, 3- 7 is National School Breakfast Week, 9- 15 is National Pulmonary Rehabilitation Week, 10- 16 is Brain Awareness Week and Problem Gambling Awareness Week, 16- 22 is National Inhalants and Poisons Awareness Week and National Poison Prevention Week, 30 - April 5 is Root Canal Awareness Week and 31- April 6 is National Sleep Awareness Week; March 13th is World Kidney Day, the 24th is World Tuberculosis Day, the 25th is American Diabetes Alert Day, the 30th is Doctor’s Day and the 31st is Kick Butts Day.
ADA News No. 168 February 29, 2008
ADA News No. 169 March 26, 2008
ADA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 169March 2008
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. Recent issues of this newsletter can be found online on the Department website. All past issues of this publication are archived on the DEP internal website.
NURSE UNSUCCESSFUL IN TERMINATION LAWSUIT - Intriguing facts underlie a recent decision by the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) in its review of a lower court decision upholding the termination of a nurse with a history of drug abuse. The nurse, who was placed in a Minnesota state program requiring close supervision because of her history of drug abuse and theft, was fired when the hospital in which she worked could not provide the constant supervision she required. She sued, charging that she had been fired because of her former dependency. The lower court, affirmed by the Appellate Court, found that the nurse did not have a disability. This case is “ unique because [ the nurse’s] claimed disability has a peculiar feature,” stated the Court. “ Certain behavior, while consistent with her claimed disability, also happens to be illegal. Such conduct is not protected by the ADA.” Under the ADA, “ the term ‘ individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” While the nurse claimed that she was currently sober, she argued that she would be disabled if she relapsed. The Court rejected this reasoning. “ Under the ADA, [ the nurse] is not protected from the consequences of illicit conduct explainable by her chemical dependence, such as diverting hospital drugs intended for patients to personal use.” The nurse also contended “ that because of her chemical dependency she is precluded from the major life activity of working.” The Court dismissed this claim as well, finding that her testimony was that her dependency did not affect her outside of work and that she had been employed steadily as a nurse for several years. Finally, the Court also rejected her claim that the hospital regarded her as disabled. “ The record does not support her allegation that St. Cloud knew she was substantially limited in some major life activity or that St. Cloud regarded her as such.” Surprisingly, it does not appear that the nurse tried to show the existence of discrimination based on a “ record or history of disability.” Dovenmuehler v. St. Cloud Hospital, CA8, No. 07- 1096, 12/ 4/ 07.
DID FOREMAN REQUEST REASONABLE ACCOMMODATION? - That question was not answered in a December opinion from the U. S. Court of Appeals for the Sixth Circuit ( MI, OH, KY, TN) that reviewed the claim of a tree service foreman who had missed 17 days of work. On his return, the foreman presented his supervisor with materials about bipolar disorder and disability law. The ADA News No. 169 March 26, 2008
employer, assuming that the foreman was requesting a reasonable accommodation, requested medical documentation of his condition, directed he submit to an independent medical examination and placed him on indefinite leave. When the foreman refused to provide the requested documentation, he was fired. The foreman filed suit, charging that his rights under the FMLA and ADA had been violated. The trial court dismissed his claim, finding that by giving his employer the materials, he had requested an accommodation, thus entitling the employer to request medical documentation. On appeal, the foreman argued that he had never requested an accommodation and, therefore, the trial court erred in finding for the employer. The Appellate Court, however, found for the employer on another basis; that the foreman’s 17- day absence was proof that he could not perform an essential function of his position, i. e., attendance. (“ An appellate court can affirm on other grounds,” states the opinion, “ so long as the opposing party is not denied an opportunity to respond even when a district court has relied on an erroneous basis to grant a party summary judgment.”) The Court found that it was reasonable for the employer to assume that the foreman’s bipolar disorder would affect his attendance since he had already missed work. ( The company had discharged the foreman once before for failing to show up for work.) The Court brushed aside the foreman’s arguments that his performance had previously been rated “ excellent,” stating “[ j] ob performance is separate from the ability to show up for work, an essential function of his position.” The question whether he had actually requested an accommodation was left unanswered. Denman v. Davey Tree, CA6, No. 06- 2588, 12/ 27/ 07.
DISABILITIES WEBSITE OF THE MONTH - The “ online wing” of the Museum of disABILITY History complements the freestanding bricks and mortar museum in Williamsville, NY. The Museum is dedicated to advancing the understanding, acceptance and advancement of people with disabilities. The Museum’s collections, exhibits, archives and educational programs create awareness and a platform for dialogue and discovery. Take a tour! It’s free.
FMLA AMENDED - The recently signed Defense Authorization Act for Fiscal Year 2008 contains a provision amending the Family and Medical Leave Act ( FMLA), increasing the amount of job- protected family medical leave for a family member to care for a member of the armed forces who is injured in the line of duty. The amendment, termed “ Service Member Family Leave,” allows an employee who is the spouse, son, daughter, parent, or next of kin of a covered service member up to 26 weeks of unpaid leave to care for that service member. The 26 weeks is limited to a single 12- month period.
AREA CALENDAR -
Access by Design: From Minimum Compliance to Universal Design; 2: 00- 5: 30 p. m., April 21, 2008; Ohio State University; a discussion of the mandate to provide basic access will provide a foundation for a tour of the various standards for access and their interrelationships; examples drawn from experience and selected settlement agreements resulting from court cases and enforcement agency initiatives will provide a context for exploring the principles of Universal Design; for more information, see the NCD website ( scroll to bottom of webpage)
ADAPT Fun Run/ Roll; April 27, 2008; Upper Senate Park, Washington D. C.; for more information, contact Bob Kafka at 512- 431- 4085 or visit the ADAPT website ADA News No. 169 March 26, 2008
Recruitment and Retention of a Qualified Worker; April 29 and May 20, 2008; Teleconference; presenters will provide data on national trends in the child welfare workforce and the multiple costs of workforce issues for agencies, children and families, and an overview of promising strategies developed by the grantees to improve recruitment, selection and retention; a child welfare administrator who has taken a comprehensive approach to addressing workforce issues will discuss the steps taken and the difference this has made in a Colorado county; for more information visit the teleconference website
ADAPT 25th Anniversary Celebration; May 1, 2008; Holiday Inn Capitol, Washington, D. C.; for more information, contact Bob Kafka at 512- 431- 4085 or visit the ADAPT website
Visions of Hope and Opportunity in Developmental and Learning Disabilities; May 5- 9, 2008; Crowne Plaza Manhattan Hotel, New York City, New York; special focus on Autism Spectrum Disorders; more than 300 speakers and 180 breakaway sessions are available; presentations by Dr. Temple Grandin, Richard Lavoie and Dr. Jed Baker; for more information visit the conference website
Workforce Diversity: Diversity and Disability in the Workplace; May 20- 21, 2008; Richmond, VA; co- sponsored by the Virginia Business Leadership Network, an in- depth “ train- the- trainer” event, focused on disability awareness, with the employment provisions of the ADA integrated throughout each of five training modules; more info and register at training website
Mental Health America ( MHA) 2008 Conference; June 4– 7, 2008; Hyatt Regency Washington Capitol Hill, Washington, D. C.; each year, the Mental Health America Conference draws together hundreds of leaders and advocates from across the country to learn about critical issues in the behavioral health field and strategies for collective action; attendees include executives and staff from MHA’s 320 state and local affiliates, mental health consumers, family members, policymakers, advocates, providers, and academic, government and business leaders; for conference info, contact Danielle Fritze, or visit the conference website
2008 Society for Disabilities Conference; June 19- 22, 2008; New York City, NY; a rich, professional arts program, the greater inclusion of people with intellectual disabilities, and the ability to showcase work of applied social scientists and senior scholars, as well as that of new scholars and new directions for the field; for more information please visit the conference website
National Consortium for Physical Education and Recreation for Individuals with Disabilities Annual Summer Conference; July 17- 19, 2008; AAHPERD Headquarters, Reston, VA; for more information, contact Cindy K. Piletic, Ph. D. at 309- 298- 1058, or refer to the NCPERID website
National Presidential Candidate Forum; July 26, 2008; Veteran's Memorial, Columbus, OH; celebrate the 18th Anniversary of the ADA; hosted by the Ohio Disability Vote Coalition ADA News No. 169 March 26, 2008
and major national sponsors; for more information, contact Sue Hetrick
National VISIONS 2008 Conference; August 8- 10, 2008; Hyatt Regency Crystal City, Arlington, Virginia; conference provides the opportunity for sight- impaired individuals and their families to learn about recent developments in medical research, daily living skills, and products and services for members of the low vision community; conference also offers science lectures, information sessions, and exhibits, and networking opportunities through underwriting of sessions and social events; conference is sponsored by The Foundation Fighting Blindness; for more information, e- mail L. Gorsuch, call 410- 568- 0168, or visit the conference website
JUSTICE DEPARTMENT REACHES SETTLEMENT WITH UNIVERSITY OF MICHIGAN CONCERNING FOOTBALL STADIUM’S ACCESSIBILITY FOR PERSONS WITH DISABILITIES ( from the DOJ website, 3/ 10/ 08) – The Justice Department announced today that it has resolved a lawsuit against the University of Michigan under the Americans with Disabilities Act ( ADA). The Justice Department and the Michigan Paralyzed Veterans Association brought suit to challenge the lack of accessible seating in the university’s football stadium. Today, the federal district court in Detroit entered a consent decree resolving the lawsuit. Under the settlement agreement, the university – which is currently in the midst of a $ 226 million expansion of the stadium – will add over 200 wheelchair and companion seats to the stadium during the next two years. Read the rest of this DOJ Release HERE.
AROUND THE WORLD - People with disability in Canada can be positive contributors ( by Jingyuan, ChinaDaily. com. cn, 3/ 26/ 08) Over six years ago, a young deaf Canadian man, full of enthusiasm and passion, created the website Whistlerforthedisabled. com all by himself to be a resource for disabled people. It has become the leading website of its kind in North America. On it Hugh Tollett has collected information on accessible facilities for the disabled. He still continues to work hard on improving his website. His perseverance, friendliness and sincerity impress those who meet this determined young man. When explaining the primary goal of building the website, his assistant said Tollett wanted to give visitors, both able- bodied and disabled as many opportunities as possible to participate in the invigorating mountain lifestyle of Whistler. Tollett is also eager to inform people that accessibility is more important today than before. He says it's not just because of the upcoming 2010 Olympics and Paralympics – accessibility is important in everyday life and everybody should be more aware of it. In Canada, the population with disabilities is growing, so planning effectively for people with disabilities right now can ensure society will be more inclusive in the future. In Tollett's view, a person with a disability doesn't mean he can't contribute positively to the society. His experience in the past couple of years clearly illustrates the disabled can do a lot of work and do it very well. On his website there is a map of Whistler where facilities like washrooms, shops and ramps for wheelchairs are shown in symbols. In this way, everyone coming from all over the world can find the information they need easily whatever their native tongue is. Currently Tollett is running the website by himself and looking for funding and assistance from the government, society and organizations. Having overcome all kinds of difficulties, he is still sticking to his goals and has become more ambitious He now wants to help people with disabilities worldwide by making resources available to them on the Internet. In Canada, one out of every eight people has a disability. For many years, the Canadian government has worked hard to create an environment that is accessible and nondiscriminatory for everyone. ADA News No. 169 March 26, 2008
JOB BIAS CHARGES RISE 9% IN 2007, EEOC REPORTS ( Washington, DC) – The U. S. Equal Employment Opportunity Commission received a total of 82,792 private sector discrimination charge filings last fiscal year, the highest volume of incoming charges since 2002 and the largest annual increase ( 9%) since the early 1990s, the agency reported today as part of its Fiscal Year 2007 enforcement and litigation statistics. Read the EEOC report HERE.
LAW ENFORCEMENT NEEDS BETTER UNDERSTANDING OF DISABLED PEOPLE ( Mike Ervin, MCT Forum, 2/ 19/ 08) - Law enforcement personnel need more training about how to interact with persons with disabilities. The videotape of a quadriplegic man being dumped from his wheelchair by a sheriff's deputy while in custody in Florida has stirred outrage and has led to the unpaid suspension of the deputy. For the 1.6 million people like me who use wheelchairs, the incident is particularly galling. Read the rest of this interesting story HERE.
RESOURCES - Some disability/ employment- related resource material recently added to the catalog. 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).
The February edition of the National Council on Disability Monthly Bulletin is now available online.
The March 2008 edition of the NCPAD News, 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.
News and Notes is the monthly newsletter of The Family Center on Technology and Disability. The newsletter is devoted to a different topic each month. The February 2008 edition contains information about Summer Camp ‘ 08: The Break That Refreshes.
The latest edition of the bi- monthly newsletter of the ADA& IT Information Center for the Mid- Atlantic Region, is now available online with disability- related resources, news, and many other items of interest.
The latest edition of In Focus, the newsletter of the U. S. Department of Labor, includes up- to- the- minute news about the Department and the Secretary of Labor.
Life Without Limits is the monthly e- newsletter of United Cerebral Palsy ( UCP), free from the organization's website. The March 2008 issue is now available and includes articles about Cheryl Hines and golfer D. J. Gregory.
UCPeople is a weekly newsletter written for UCP affiliates. The latest edition includes a story about Shakespeare with Heart, the UCP of Central Florida ( UCP- CFL) summer program.
AUCDigest is a monthly newsletter that highlights the news, initiatives, and events occurring throughout the American University Centers on Disability ( AUCD) Network and the disability ADA News No. 169 March 26, 2008
community. It also includes news from the AUCD National Office, including a regular message from the president of AUCD, funding opportunities, and employment opportunities. The latest edition is available online.
Issue No. 23 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 now available online. This month’s issue includes reports on efforts to improve the accessibility of prisons and jails and a note on a successful mediation in Pennsylvania.
Download the latest edition of UCP’s weekly Capitol Insider and read about what is happening in disability public policy in Washington, DC.
Legislative News InBrief is a weekly publication of AUCD, available online HERE.
Podcast Series: Disability Law Lowdown - Brought to you by nationally recognized leaders in the field of disability law, the Disability Law Lowdown Podcast delivers the latest in disability rights information every other week. Nice refresher course on law and its origins, too. You can subscribe for free and have shows automatically delivered, or you can listen to the show and read the transcripts from this site.
Removing Barriers: Planning Meetings That Are Accessible To All Participants - Sponsored by the North Carolina Office on Disability and Health, this publication highlights basic guidelines and strategies to help organizations make their meetings accessible and welcoming to people with disabilities.
Arranging Accessible Meetings - The fundamental issues to consider when arranging a meeting that allows for the attendance and participation of people with disabilities.
Guidelines for Universal Design of Exhibits - This document is meant to challenge your thinking as you pursue a universal approach to design. The enclosures and reference material will provide you with additional stimulation and the technical knowledge for creating appropriate exhibit designs.
Accessible Conferences - Have you been tasked with planning a conference that is accessible to everyone? This course will help you plan and/ or host accessible meetings, conferences, etc. The guidelines provide you with what you need to know to comply with Sections 504 and 508 of the Rehabilitation Act.
Latinos with Disabilities in the United States: Understanding & Addressing Barriers to Employment - A report from Proyecto Visión examining the low employment status of Latinos with disabilities and recommendations for improvements. An executive summary of the report is available online HERE. The report is also available in Spanish HERE.
Accessible Sidewalks video - A series of videos on designing accessible sidewalks is available on the U. S. Access Board’s website.
ADA News No. 169 March 26, 2008
EEOC Addresses Employment of Veterans with Service- connected Disabilities – The U. S. Equal Employment Opportunity Commission has issued two question- and- answer guides providing technical assistance for employers and veterans on workplace issues affecting veterans with service- connected disabilities. Both documents are available on the EEOC web site. Veterans with Service- Connected Disabilities and the Americans with Disabilities Act ( ADA): A Guide for Employers briefly explains how protections for veterans with service- connected disabilities differ under the Uniformed Services Employment and Re- employment Rights Act and the ADA, and then describes how the ADA in particular applies to recruiting, hiring, and accommodating veterans with service- connected disabilities. Veterans with Service- Connected Disabilities in the Workplace and the Americans with Disabilities Act answers questions that veterans with service- connected disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look to find their first, or new, civilian jobs; explains changes or adjustments that veterans may need, because of their injuries, to apply for, or perform, a job, or to enjoy equal access to the workplace; and includes resources on where veterans can find more information about the employment rights of individuals with disabilities.
DISABILITY SAVINGS ACCOUNTS - On March 11, Senators Chris Dodd ( D- CT), Bob Casey ( D- PA) and Orrin Hatch ( R- UT) introduced legislation to allow families to create disability savings accounts for their children with disabilities. Senator Dodd’s bill is the Disability Savings Act of 2008 ( S. 2741), and the Casey- Hatch bill is the Financial Security Accounts for Individuals with Disabilities Act of 2008, ( S. 2743). Similar to the Section 529 accounts to save for future higher education, these accounts would be designed for long- term savings to assist an individual with disabilities in meeting his/ her future needs. A House bill, Financial Security Accounts for Individuals with Disabilities Act of 2007, H. R. 2370, was introduced by Representative Ander Crenshaw ( R- FL) in May, 2007.
WASHINGTON, DC COUNCIL PASSES NEW PAID SICK LEAVE LAW - The Washington, DC City Council has passed a law making it mandatory that employers offer paid sick leave to all employees in the District. The Council unanimously approved the legislation, called the “ Accrued Sick and Safe Leave Act of 2007,” on March 4, 2008. The measure, which would become law 30 days after the Mayor signs the bill, unless Congress intervenes, requires employers to provide three to seven paid sick days per year, depending on the number of employees. Employees must be employed for at least one year to be eligible for paid sick leave. Wait staff is completely exempt from this bill. Under the bill, workers can use sick days for absences from work resulting from physical or mental illness or injury or the need for preventative care for one’s self or to care for a child, parent, spouse or domestic partner. Additionally, if the employee or the employee’s family member is a victim of stalking, domestic violence or sexual violence, these paid sick days can be used to obtain psychological or other counseling. Companies may apply for a “ hardship” exemption under the bill. “ Hardship” will be defined by the Mayor. The specific definition of “ hardship” could have a significant impact on employers who currently do not provide sick leave to employees. The definition, which will likely include economic hardship, will determine the full extent of the coverage of this legislation. Currently, San Francisco is the only city requiring employers to provide paid sick leave to employees. San Francisco’s law went into effect in February 2007. The San Francisco law does not provide for victims of stalking, domestic violence or sexual violence.
DISABLED WORKERS FEEL VULNERABLE AS JOBS VANISH ( by Jocelyn Wiener, Sacramento ADA News No. 169 March 26, 2008
Bee, 3/ 25/ 08) - Kevin Schmidt, a 21- year- old with attention deficit disorder, cried when he learned that his job mopping and vacuuming at a tech company was being phased out. Steve Ambrunn, 26, who has developmental disabilities, felt “ mad” after he was laid off from his janitorial job at a construction supply company. “ Having a disability, most places won't even hire,” said Christian Johnson, 33, who became cognitively impaired after hitting his head in a childhood skateboarding accident. “ I could be out looking, but I'm not going to find anything.” As the economy sours, advocates for people with disabilities are expressing concern about that population's already bleak employment prospects. A 2004 Cornell University study showed just 37.5 percent of the nation's working- age people with disabilities were employed, compared with 77.8 percent of those without disabilities. Read the rest of this sobering story HERE.
7- ELEVEN’S UPGRADE OF POINT OF SALE EQUIPMENT PRAISED BY BLIND COMMUNITY: TACTILE DEVICES WILL PROTECT FINANCIAL PRIVACY ( ATechNews, 3/ 18/ 08) – Several organizations representing the blind community today commended 7- Eleven, Inc. for installing tactile point of sale ( POS) devices that will protect the privacy and security of 7- Eleven shoppers with visual impairments. These new devices include tactile keys arranged like a standard telephone keypad, and enable 7- Eleven store shoppers who have difficulty reading information on a touch- screen to privately and independently enter their PIN and other confidential information. 7- Eleven has installed the new devices at more than 2,000 stores in the U. S. Over the next 18 months, all flat- screen devices in 7- Eleven’s 5,500 U. S. stores will be replaced with the tactile units. Today’s announcement is the result of collaboration between 7- Eleven and blindness organizations including the American Council of the Blind ( ACB), the American Foundation for the Blind ( AFB), and the California Council of the Blind. Speaking for the organizations, ACB President Mitch Pomerantz praised 7Eleven, saying, “ Blind customers across the country will benefit from 7- Eleven’s decision to replace technology that cannot be used by customers who cannot see information on a flatscreen.” Pomerantz added, “ 7- Eleven has set an example for other retailers by recognizing that persons with visual impairments should not have to disclose confidential information when purchasing products and services.” 7- Eleven is also ensuring that the ATMs and Vcom machines in its stores nationwide are accessible as well. ATMs and Vcoms in 7- Eleven stores will contain a “ talking ATM” function, allowing independent use by blind customers.
AIRLINES TACKLE WHEELCHAIR NEED ( by Barbara De Lollis, USA TODAY) - Ellen Brehm, a retired nurse who walks with a cane, was stranded last September after flying home from California following the annual trip she's been taking with college friends since 1947. Her flight, which had departed six hours late, landed at Newark at about 1: 20 a. m. The wheelchair service she'd requested was nowhere in sight. Brehm returned to the plane to sit and wait, but a flight attendant told her she must get off so the crew could leave. She then stood on the jet bridge, balancing on her cane, to wait. About 30 minutes later, another flight attendant exited the plane and asked if she needed help. The woman eventually returned with a wheelchair attendant. " Here I am, at 2 a. m., 83 years old, all by myself," Brehm says. " There wasn't one person in this whole huge airport. I don't know what I would have done if she hadn't come out." Airlines are obligated to provide free, prompt wheelchair assistance between curbside and cabin seat to comply with the 21- year- old Air Carrier Access Act, an anti- discrimination law. But, as more disabled and elderly people take flight in today's congested air system, many are finding that the assistance is difficult to get. In the three years that the government has issued statistics, more than 34,000 disabled fliers have complained about their treatment, and 54% of the incidents have involved wheelchair assistance. Read the rest of this story HERE.
2007- 2008 UCP OF CENTRAL PA ATTITUDES ESSAY CONTEST UNDERWAY - UCP Central PA and SchmidtKramer PC Ask Students to “ Show a Little Attitude” - It’s that time of year again! UCP Central PA has just kicked off the annual UCP/ SchmidtKramer Attitudes Essay Contest for the 2007- 08 school year. The intent of the contest is to reduce attitudinal barriers between people with and without disabilities, while highlighting the writing skills and instinctive insight of the young people throughout our Central PA community. Some essays created new ways of thinking or talking about people with disabilities; some criticized the stereotypes that have historically limited people with disabilities. Above all, the essays have illustrated the amazing insight and basic kindness of each author. Read more about the contest HERE.
COMING UP NEXT MONTH - National Alcohol Awareness Month, National Cancer Control Month, National STDs/ Family Planning Awareness Month, National Autism Awareness Month, Candlelight Vigil for Eating Disorders Awareness Month, Cesarean Awareness Month, Child Abuse Prevention Month, Counseling Awareness Month, National Donate Life Month, National Facial Protection Month, National Humor Month ( no kidding!), IBS ( Irritable Bowel Syndrome) Awareness Month, National Occupational Therapy Month, Sexual Assault Awareness Month, Women’s Eye Health and Safety Month, National Youth Sports Safety Month, Stress Awareness Month, National African- American Women's Fitness Month, National Sarcoidosis Awareness Month, Sports Eye Safety Month; March 30- April 5 is National Healthcare Access Personnel Week, April 6- 12 is National Public Health Week, 13- 19 is National Health Information Privacy & Security Week, Week of the Young Child and Heimlich Maneuver Week, 20- 26 is National Minority Cancer Awareness Week, National Medical Laboratory Professionals Week, TV- Turnoff Week, Organ and Tissue Donor Awareness Week, National Electroneurodiagnostic Week and National Volunteer Week, 21- 25 is National Playground Safety Week, 21- 27 is Medical Fitness Week, 25- 27 is Global Youth Service Day, 26- 27 is WalkAmerica March of Dimes, April 26 - May 4 is National SAFE KIDS Week, 27- May 3 is Infants Immunization Week, National Foot Health Awareness Month; April 5th is YMCA Healthy Kids Day, 5- 8 is Alcohol Free Weekend, the 7th is World Health Day, the 10th is National Alcohol Screening Day, the 16th is International Noise Awareness Day and World Voice Day, the 22nd is Earth Day, the 26th is World Tai Chi and Qigong Day.
ADA News No. 169 March 26, 2008
ADA News No. 170 April 30, 2008
ADA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 170April 2008
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. Recent issues of this newsletter can be found online on the Department website. All past issues of this publication are archived on the DEP internal website.
ENGINEER’S SUSPENSION NOT DISCRIMINATORY - The U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) issued a decision last month in a case in which a locomotive engineer challenged an order of the United States District Court for the Eastern District of Pennsylvania granting summary judgment to the employer Norfolk Southern Railway on his claims that the employer violated his rights under the ADA when it suspended him for nine months based on a belief that his condition did " not permit safe performance of the essential functions of [ his] position." The employee claimed that he had a non- limiting impairment, ischemia, that the employer mistakenly regarded as being an impairment that substantially limited him in the major life activity of pumping and circulating blood. The Court disagreed. Under the ADA, “ an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment … are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.” The employer did precisely what the ADA allowed: it decided that because of the employee’s ischemia, he should not be working as a locomotive engineer given the possibility, however slight, that while performing his duties he could suddenly become incapacitated with potentially disastrous results. Moreover, the employer’s actions in suspending the employee demonstrated that it believed that the employee’s impairment did not substantially limit him. The employee failed to adduce any evidence raising a triable issue of material fact as to the employer’s belief that the employee’s impairment was substantial. Snyder v. Norfolk Southern Railway Corp., CA3, No. 06- 5084, 3/ 3/ 08.
ADA PROHIBITS ASSOCIATION DISCRIMINATION AGAINST EMPLOYEES - The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) has reversed the dismissal of a nurse’s claim of association discrimination against a hospital in an ADA lawsuit. The nurse claimed that a self- insured hospital fired her because it viewed the cost of her husband’s cancer treatment as inordinately high. The nurse was hired by Proctor Hospital in September 2001and worked as a clinical manager, supervising other nurses and hospital staff members. The nurse’s supervisor rated her performance as “ outstanding.” Throughout the nurse’s employment at the hospital, her husband suffered from prostate cancer. His medical treatment was continuous and expensive and was paid for through the ADA News No. 170 April 30, 2008
hospital’s self- coverage. The nurse and her husband were covered under Proctor’s health insurance plan, which was largely self- funded— the hospital paid for members’ covered medical costs up to $ 250,000 each year, with costs in excess of that amount covered by an insurance policy. Proctor reviewed medical coverage costs periodically and documented medical claims in quarterly “ stop- loss” reports, which listed all employees whose medical claims had exceeded $ 25,000 within the quarter. The nurse’s claims were listed on reports in 2003, 2004 and 2005. In September 2004, the nurse was confronted by her supervisor, who told her that a committee was reviewing her husband’s medical expenses, which the hospital felt were unusually high. The supervisor then asked the nurse about the type of treatment being received by her husband for his cancer. When she responded that her husband received both chemotherapy and radiation, the supervisor asked whether she had considered hospice care, a less expensive alternative. The nurse responded that her husband’s doctor considered hospice care to be premature. In February 2005, the supervisor again raised the treatment issue and was told that the nurse’s husband’s status had not changed. At a meeting of clinical managers in May 2005, the supervisor informed employees that the hospital was facing financial troubles and would take “ creative” efforts to cut costs. Proctor fired the nurse in August 2005, and designated her as “ ineligible to be rehired in the future.” Proctor provided no explanation for its “ ineligible for rehire” decision. The nurse filed a lawsuit against Proctor, alleging age, gender and disability discrimination claims. The district court granted summary judgment to the hospital on all three claims. On appeal, the Circuit Court upheld the dismissal of the age and gender claims, but reversed as to the ADA claim, finding a factual dispute on the issue of whether the hospital’s action was based on “ association discrimination.” The Court found that association discrimination may have motivated Proctor to fire the nurse and that a jury should be allowed to decide the claim. While her case seems compelling, the concurring opinion by Judge Posner raises an interesting issue, and one that may have changed the outcome of the case. Posner pointed out that the hospital failed to produce any evidence of a nondiscriminatory reason for terminating the nurse. If, in fact, that information had been available to the court, it may have allowed the case to be reviewed under a “ shifting burden” analysis. Had the hospital been able to provide a legitimate business reason for the nurse’s termination, the burden may have shifted back to her to prove that the proffered reason was simply a pretext for discrimination. Dewitt v. Proctor Hospital, CA7, No. 07- 1957, 2/ 27/ 08.
DISABILITIES WEBSITE OF THE MONTH - ADA Training Resource Center: Your One- Stop for Courses, Events & Tools on the Americans with Disabilities Act, a Project of the DBTAC National Network of ADA Centers. This website was developed by the DBTAC National Network of ADA Centers as a comprehensive resource for training materials on the ADA. This website features a centralized search for training materials such as case law, case studies, handouts, statistics and quotes, and TIPS sheets, and also contains information about various events and training opportunities such as webcasts, audio- conferences, and courses. Additionally, there are “ Solutions” pages that highlight events, materials, and FAQs on the ADA for: Individuals and Advocates; Architecture and Design Professionals; Business Owners and Managers; Employers; and State & Local Government entities.
REFUSAL TO HIRE IMPAIRED WORKER NOT DISABILITY BIAS ( by Linda Coady, Esq., Andrews Publications Staff Writer) - A refinery’s refusal to hire an applicant who admitted to suffering from weakness on the right side of his body did not violate disability laws, a federal judge in Houston has ruled. U. S. District Judge Ewing Werlein said the Equal Employment Opportunity Commission did not show that Lyondell- Citgo Refining LP regarded Steve Aleman as disabled or that it discriminated ADA News No. 170 April 30, 2008
against him based on his record of disability in violation of the ADA. “ An employer may freely decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job without violating the ADA,” the judge said. According to the EEOC's complaint, Aleman applied for a job as an operator trainee at LCR and underwent physical ability and pre- placement physical testing. During the physical ability test, he disclosed that he had undergone brain surgery some years before. He passed the physical ability test, and the company made him a conditional offer of employment. During the pre- placement physical test Aleman noted on his medical history form that he previously sustained a head injury that required hospitalization and experienced seizures and weakness in the right side of his body, the opinion says. Based on information Aleman provided, the doctor who conducted the pre- placement physical test determined that he could not safely climb ladders, which the operator job required. LCR withdrew its employment offer based solely on the doctor's recommendation, it says. Aleman filed a discrimination charge with the EEOC, and the agency filed suit on his behalf in the U. S. District Court for the Southern District of Texas. The complaint alleged that LCR violated the ADA by refusing to hire Aleman because he was disabled and had a history of disability. Judge Werlein granted the refinery's motion for summary judgment. The judge explained that to be regarded as disabled, a plaintiff must show that he has a physical or mental impairment that does not substantially limit major life activities but is treated as disabled by the employer. LCR said it withdrew the job offer because it believed that Aleman could not safely climb ladders, according to Judge Werlein. However, climbing has not been deemed a “ major life activity” for purposes of the ADA, he said. A major life activity is a “ basic, necessary function” such as walking, seeing or breathing, the judge said. In this case, LCR seemed to be aware that Aleman’s impairment might affect activities other than climbing, Judge Werlein said. “ Awareness of an impairment, however, cannot alone prove that the employer regarded an employee as disabled,” he said. The judge dismissed the disability claim, saying the EEOC did not show that Aleman's impairment, as LCR perceived it, was substantially limiting. The agency alleged in the alternative that Aleman is covered by the ADA because of a “ record of disability.” A plaintiff has a record of disability if he has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities, Judge Werlein explained. While the EEOC contended that Aleman's history of seizures and right- side weakness can be substantially limiting, it did not present evidence that those impairments “ actually posed substantial limitations to Aleman's ability to walk, stand, balance or, indeed, to engage in any recognized major life activity,” Judge Werlein said.
AREA CALENDAR -
PA Office of Deaf & Hard of Hearing Community Forum; 6: 30 p. m to 8: 30 p. m., May 1, 2008; Doylestown Branch, Bucks County Free Library, Doylestown, PA
Summit on Accommodating Students with Disabilities in Online Learning; May 19- 20, 2008 ( registration deadline: May 5, 2008); Columbus, Ohio; summit hosted by Disability Compliance in Career and Online Learning ( DCCOL); discuss how institutions of higher education can and should meet the challenges presented in assuring full access to online educational programming for students with disabilities; to receive registration materials or for further information, contact: e- mail DCCOL or Jane Jarrow, or call 614- 370- 1780
Introduction to Olmstead; May 5- 23, 2008; online course; participants will learn about the ADA News No. 170 April 30, 2008
background and significance of the U. S. Supreme Court Olmstead decision; for more information and registration, see the course website
Hear Now & Forever; May 12, 2008; Genetti’s Hotel & Conference Center, Wilkes- Barre, PA; sponsored by the PA Office of Deaf & Hard of Hearing; the Luzerne Intermediate Unit will be hosting Hear Now & Forever to honor Better Hearing and Speech Month; conference highlights include exhibit hall, educational sessions, hearing conservation program for middle school students, a community emergency preparedness information workshop, a luncheon and keynote address; Keynote Speaker is Justin Osmond, son of Merrill Osmond from the Osmond Brothers Singing Group; for more information, contact Sue Zerfoss at 570- 287- 9681 ext. 177
PA Office of Deaf & Hard of Hearing Deaf Town Meeting; 6: 30 p. m to 8: 30 p. m., May 15, 2008; Doylestown Branch, Bucks County Free Library, Doylestown, PA
Assistive Technology for Students; May 15, 2008; Walter Johnson HS Cafeteria, 6400 Rock Spring Dr., Bethesda, MD; for more information, see the conference website
PA Office of Deaf & Hard of Hearing Deaf Town Meeting; 6: 30 p. m to 8: 30 p. m., May 16, 2008; Days Inn Meadville Conference Center, Meadville, PA
PA Office of Deaf & Hard of Hearing Community Forum; 6: 00 p. m to 8: 00 p. m., May 21, 2008; Country Inn and Suites, Pottsville, PA
PA Office of Deaf & Hard of Hearing Deaf Town Meeting; 6: 30 p. m to 8: 30 p. m., June 9, 2008; Radisson Inn, Monroeville, PA
PA Office of Deaf & Hard of Hearing Community Forum; 6: 30 p. m to 8: 30 p. m., September 12, 2008; Courtyard by Marriott, Erie, PA
PA Office of Deaf & Hard of Hearing Community Forum; 6: 30 p. m to 8: 30 p. m., September 15, 2008; Sheraton Greensburg, Greensburg, PA
PA Office of Deaf & Hard of Hearing Deaf Town Meeting; 6: 30 p. m to 8: 30 p. m., October 10, 2008; Quality Inn, Hermitage, PA
Autism: Update on Diagnosis and Intervention through Adolescence; October 23- 24, 2008; The Conference Center at Sheppard Pratt, Baltimore, MD; Kennedy Krieger Institute’s Annual Autism Conference; for more information call 877- 850- 3372
COMPLETE STREET ACT INTRODUCED - Senator Tom Harkin has introduced an act for “ Complete Streets” to make streets safe and usable for all users, including disabled pedestrians. “ Making our streets bike and pedestrian friendly is a win- win for us all,” said Harkin. “ It not only promotes healthier lifestyles, it lowers the amount of traffic congestion that many people deal with every day.” Harkin’s proposal has been endorsed by: AARP, America Bikes, America Walks, American Council of the Blind, American Planning Association, American Public Transportation Association, American Society of Landscape Architects, Association of Pedestrian and Bicycle Professionals, League of ADA News No. 170 April 30, 2008
America Bicyclists, National Center for Bicycling and Walking, Safe Routes to School National Partnership, Smart Growth America, Surface Transportation Policy Partnership, Thunderhead Alliance, and Rails to Trails Conservancy.
AROUND THE WORLD - UN Disabled Rights Charter Gets Key OK ( by Frank Jordans, TownHall. com, 4/ 4/ 08) A U. N. convention to protect the rights of the world’s disabled people has been ratified by enough countries to take effect, the U. N. rights chief said Friday. Ecuador’s approval Thursday brought to 20 the number of countries ratifying the charter, meaning it will become legally binding in those countries May 3. “ I cannot stress enough the importance of this groundbreaking convention, which fills an important gap in international human rights legislation affecting millions of people around the world,” U. N. High Commissioner for Human Rights Louise Arbour said. A further 106 states have signed the convention, signaling their intention to ratify it in the future, according to Arbour’s office. The U. S. and some other nations have said they will not sign it, arguing that it would dilute the strength of their own laws. The U. N. estimates there are 650 million people around the world with disabilities. The Convention on the Rights of Persons with Disabilities was approved by the U. N. General Assembly in December 2006. The convention is seen as a blueprint to end discrimination against the physically and mentally disabled. It requires countries to guarantee freedom from exploitation and abuse for the disabled, while protecting rights they already have. This includes voting and property rights, as well as requirements to make buildings more accessible. Despite the decision not to sign, American officials say the U. S. has a strong record on rights for the disabled, citing the 1991 Americans with Disabilities Act that grants equal access and protection to all persons with disabilities. “ We believe that what’s important is for countries to strengthen their national legislation, rather than to sign new international conventions,” said the U. S. State Department’s special representative for social issues, Grover Joseph Rees.
OFFICE FOR THE DEAF AND HARD OF HEARING ( ODHH) TO HOST MEETINGS - If you are deaf or hard of hearing and would like to know what services the PA ODHH can provide, you are invited to attend an upcoming Deaf Town Meeting or Community Forum for People with Hearing Loss.
SIGN LANGUAGE INTERPRETER FUND - The Pennsylvania Bar Association has established the Sign Language Interpreter Fund/ CART Fund to reimburse attorneys who use sign language interpreters or Communications Access Realtime Translation ( CART) services to communicate with clients or potential clients. Follow this link for more information on the fund.
RESOURCES - Some disability/ employment- related resource material recently added to the catalog. 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).
The March edition of the National Council on Disability Monthly Bulletin is now available online.
The April 2008 edition of the NCPAD News, 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. ADA News No. 170 April 30, 2008
The March 2008 edition of Washington Watch, a publication of The Arc and United Cerebral Palsy, is now available on line. Washington Watch provides in- depth news and analysis on disability policy from Washington. ( This link opens a Word document.)
News and Notes is the monthly newsletter of The Family Center on Technology and Disability. The newsletter is devoted to a different topic each month. The March 2008 edition contains information about “ The Evolution of AT.”
The latest edition of the bi- monthly newsletter of the ADA& IT Information Center for the Mid- Atlantic Region, is now available online with disability- related resources, news, and many other items of interest.
The latest edition of In Focus, the newsletter of the U. S. Department of Labor, includes up- to- the- minute news about the Department and the Secretary of Labor.
Health & Disability Digest is a quarterly, online publication highlighting the latest news from the National Center on Birth Defects and Developmental Disabilities ( NCBDDD). It includes updates on RTOI projects and fellowships, information and resources on public health and disabilities services, and events for individuals with disabilities, family members, professionals and other stakeholders. The April 2008 edition is now online.
UCPeople is a weekly newsletter written for UCP affiliates.
AUCDigest is a monthly newsletter that highlights the news, initiatives, and events occurring throughout the American University Centers on Disability ( AUCD) Network and the disability community. It also includes news from the AUCD National Office, including a regular message from the president of AUCD, funding opportunities, and employment opportunities. The latest edition is available online.
Download the latest edition of UCP’s weekly Capitol Insider and read about what is happening in disability public policy in Washington, DC.
Legislative News InBrief is a weekly publication of AUCD, available online HERE.
NCD to Release Disability Data Report ( from the NCD Bulletin) - On April 21, NCD’s latest report, Keeping Track: National Disability Status and Program Performance Indicators, will be released at the Westin Arlington Gateway, 801 North Glebe Road, Arlington, VA. This report is the result of a year- long effort by NCD to identify valid federal data and to describe the status of the U. S. population of Americans with disabilities. During the past 30 years, advocates, policymakers, and a variety of public and private organizations have undertaken significant efforts to improve the lives of people with disabilities, culminating in the passage or improvement of legislation such as the Americans with Disabilities Act, various sections of the Rehabilitation Act, the Individuals with Disabilities Education Act, the Ticket to Work and Work Incentives Improvement Act, and others. The report includes 18 indicators determined by stakeholders to measure “ quality of life” using both objective and subjective measures. It also ADA News No. 170 April 30, 2008
lays out a roadmap for the Federal Government to expand the national disability indicator set, as well as a mechanism for installing the set into a key national indicator system. The report is available on the NCD Website.
NCD Releases Mental Health Paper ( from the NCD Bulletin) - On March 17, 2008, NCD released Inclusive Livable Communities for People with Psychiatric Disabilities, calling on Congress and the Administration to fully include and integrate people with psychiatric disabilities into America’s livable communities. For the promise of full integration into the community to become a reality, people with disabilities need safe and affordable housing; access to transportation; access to the political process; and the right to enjoy whatever services, programs, and activities are offered to all members of the community by both public and private entities. This paper focuses specifically on expanding the livable communities framework and elements to people with psychiatric disabilities and supports full inclusion that excludes no one.
Emergency Management Research and People With Disabilities: A Resource Guide - The National Institute on Disability and Rehabilitation Research is pleased to announce the release of a new online publication: Emergency Management Research and People With Disabilities: A Resource Guide. This resource guide is the culmination of cooperative efforts by NIDRR, the Department of Education, the Research Subcommittee of the Interagency Coordinating Council on Emergency Preparedness and Individuals with Disabilities, and the New Freedom Initiative Subcommittee of the Interagency Committee on Disability Research. The guide provides a listing and description of research projects funded by the federal government and non- federal entities, research recommendations that have come out of conferences on emergency management and disability, and a bibliography of relevant research publications. This report is available on the U. S. Department of Education's Web site.
EXPLORING THE BOTTOM LINE: A STUDY OF THE COSTS AND BENEFITS OF WORKERS WITH DISABILITIES - A recent study of 314 employees with and without disabilities conducted by researchers at DePaul University found that employees with disabilities from the healthcare, retail, and hospitality sectors had nearly identical job performance ratings as their non- disabled co- workers. ( Link opens a PDF document.)
RESIDENT SAYS MCKEESPORT SLOW TO PROVIDE ACCESS ( by Amy McConnell Schaarsmith, Pittsburgh Post- Gazette, 4/ 10/ 08) - When much of McKeesport gathers at Renziehausen Park for fireworks, Rob Robertson watches the festivities from his wheelchair in a parking lot, high on a hilltop above. The park has a little duck pond where residents fish, and the city often hosts events such as concerts there. But three years after McKeesport settled a lawsuit over insufficient disability access, there still aren't many curb cuts to make the sidewalks passable between Mr. Robertson's home and the park, according to Mr. Robertson.
PERMITS FOR THE DISABLED OFTEN ABUSED, ACTIVISTS SAY ( by Matthew I. Pinzur and Yudy Pineiro, Miami Herald, 4/ 11/ 08) - Buying groceries is already a challenge for Fred Shotz, who has terminal cancer and struggles with the physical task of shopping. It is that much harder when he needs to circle the Publix parking lot for 30 minutes waiting for an apparently able- bodied driver to ADA News No. 170 April 30, 2008
give up one of the disabled parking spots. He drives past dozens of empty spaces farther out, but they are not large enough to unload his wheelchair. It is infuriating, he said, but not surprising. “ People will use any permit they can get their hands on,” said Shotz, a disability access consultant in Plantation. “ People use the spouse’s permit, their uncle’s permit – it’s just never- ending.” A Miami- Dade inspector general’s report this week focused on workers abusing permits at Miami International Airport. But the report contained off- hand references to wider public abuse. In a span of about four hours on Thursday, The Miami Herald witnessed roughly 45 cars pulling into the 11 disabled- parking spots near one entrance to Dadeland Mall. Every one had a disabled- parking placard, but only two of the people exiting the cars had visible disabilities – one in a wheelchair, the other using a walker. Most were middle- aged women who parked in the spaces, strolled into the mall and returned with handfuls of shopping bags. Many said the permits had been issued to their disabled husbands or elderly parents – none of whom rode along. Some said they were at the mall to pick them up, but later left alone. None would give their names. Using someone else’s permit is a misdemeanor punishable by a fine up to $ 1,000 and a year in jail, according to the [ Florida] Department of Highway Safety and Motor Vehicles. Others who parked in the Dadeland spaces were elderly couples who walked slowly and told a reporter they suffered from back and knee pain and other ailments such as emphysema, diabetes, varicose veins, spinal cord injuries and rheumatoid arthritis. In many cases, however, activists contend that doctors sign off on permits for patients who do not qualify under state law. Indeed, the airport investigation is now looking into chiropractors who signed the workers’ permit applications. “ I can sign a piece of paper in three seconds or spend 10 minutes getting my patient angry at me,” Shotz said. A wide range of doctors, including chiropractors, osteopathic physicians and advanced nurse practitioners, can sign off. “ It depends on how ethical the doctor is,” said Dr. Fleur Sack, a family physician in Kendall. “ Patients ask and it’s very simple: If I think they can walk, I won't give it.” Temporary permits last no longer than six months, and a doctor must approve renewal. Permanent permits last four years, require no follow- up medical approval and can be renewed online. The state does not have a system to block renewals after the permit- holder dies. “ Someone dies and someone else in the family just starts using it,” said Betty McNally, chairwoman of Miami- Dade’s Commission on Disability Issues. Nor does the state system raise flags if one doctor issues an unusual number of permits. Police can check whether the right person is using it – the permit- holder’s driver’s license number is printed on the placard – but verifying those numbers and looking for expired permits are not necessarily high priorities. Legitimate permit- holders have long complained about fraud. In Miami- Dade County, an unusual policy of letting permit- holders park free in county- owned garages makes illicit permits even more attractive, as the airport investigation this week showed. Inspector General Chris Mazzella said the county waived about $ 2.2 million in parking fees at the airport last year, with another $ 500,000 at the Port of Miami. At the urging of aviation director José Abreu, Mayor Carlos Alvarez may suggest repealing the fee waiver. But even within the network of disability activists, such a change would be controversial. Shotz said the waiver is “ a very bad thing,” increasing demand for black- market permits and making it harder for disabled drivers to find spaces. Another activist, Miami’s Denny Wood, said ending the waivers would simply boost airport revenues on the backs of disabled travelers. “ It’s a small perk in life, but we don’t have access to good jobs; we don't get hired,” Wood said. McNally took a middle ground, saying the rule should be reformed, perhaps waiving fees for a few hours per day. Some consideration is necessary, she said, because many disabled people cannot use low- cost alternatives such as shuttle buses or taxis. At the state level, McNally said a panel will present ideas to Gov. Charlie Crist this summer, including a possible overhaul of the permit system. Until then, Shotz will keep circling the Publix lot, waiting for a space. COMING UP NEXT MONTH - Take some time in May to learn more about Clean Air Month, National Mental Health Month, Arthritis Month, Asthma & Allergy Awareness Month, National Breathe Easy Month, Better Hearing & Speech Month, Better Sleep Month, National Bike Month, Correct Posture Month, National Digestive Diseases Awareness Month, Healthy Vision Month, Hepatitis Awareness Month, National High Blood Pressure Month, Lyme Disease Awareness Month, Melanoma/ Skin Cancer Detection & Prevention Month, National Neurofibromatosis Month, Older Americans Month, National Osteoporosis Awareness & Prevention Month, National Physical Fitness & Sports Medicine Month, Skin Cancer Awareness Month, National Sight- Saving Month, Ultraviolet Awareness Month, Family Wellness Month, National Stroke Awareness Month, National Teen Pregnancy Prevention Month, Tuberous Sclerosis Awareness Month, National Trauma Awareness Month, Huntington’s Disease Awareness Month, National Critical Care Awareness and Recognition Month, National Oncology Nursing Month, Lupus Awareness Month, National Celiac Disease Awareness Month; May 1- 7 is National Physical Education and Sport Week, 4- 10 is Brain Tumor Action Week, Multiple Chemical Sensitivity ( MCS) Awareness Week, Nursing Home Week, North American Occupational Safety & Health Week, National Mental Health Counseling Week, Cover the Uninsured Week, National Hug Holiday, and Children’s Mental Health Week, 6- 12 is National Nurses Week, 9- 17 is National Alcohol & Other Drug- Related Birth Defects Week, 11- 17 is Food Allergy Awareness Week, Nursing Home Week, National Women’s Health Week, and National Hospital Week, 12- 18 is National Suicide Awareness Week and National Stuttering Awareness Week, 18- 24 is National Emergency Medical Services Week, National Neuropathy Week, Tinnitus Awareness Week, Schizophrenia Awareness Week and Medical Transcriptionist Week, 19- 23 is Bike to Work Week, 19- 25 is Buckle Up America! Week, 19- 26 is Recreational Water Illness Prevention Week, 25- 31 is Older Americans’ Mental Health Week and National Running and Fitness Week; May 2nd is National Anxiety Disorders Screening Day, the 4th is Childhood Depression Awareness Day, Green Ribbon Day and High Blood Pressure Sunday, the 5th is National Melanoma Monday, Melanoma/ Skin Cancer Awareness & Prevention Day, the 7th is National Anxiety Disorders Screening Day, Occupational Safety/ Health Professionals Day and National School Nurse Day, the 8th is World Red Cross Red Crescent Day and Childhood Depression Awareness Day, the 10th is Cornelia de Lange Syndrome Awareness Day, the 12th is National Women’s Check- up Day, CFIDS Awareness Day and Fibromyalgia Awareness Day, the 13th is Sex Differences in Health Awareness Day, the 18th is HIV Vaccine Awareness Day and National Employee Health and Fitness Day, the 25th is National Missing Children's Day, the 28th is National Senior Health & Fitness Day, and the 31st is World “ No Tobacco” Day.
ADA News No. 170
April 30, 2008
ADA News
Disabilities Law, News & Perspective
Patrick H. Bair - Editor
Number 171May 2008
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 ADA News No. 171 May 21, 2008
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. Recent issues of this newsletter can be found online on the Department website. All past issues of this publication are archived on the DEP internal website.
INVESTIGATION APPARENTLY MOTIVATED BY HEALTHCARE CLAIMS - In an action brought under the ADA and ERISA, the U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, KS, OK, NM) reversed summary judgment for an employer and remanded a case involving an employee couple whose son was being treated for, and eventually died from brain cancer. The company, PacifiCorp, was apparently very concerned about the rising cost of its health insurance. The company instigated an investigation of the couple’s alleged time and attendance abuses shortly after the couple’s insurance claims rose substantially, caused by a relapse of their son’s cancer. Both were terminated by the company, purportedly because they had falsified their timesheets. The couple sued, claiming they were actually terminated because of the healthcare costs associated with their son’s illness. Their claim was dismissed by the trial court, which found that they had failed to raise a reasonable inference that their son’s disability was a determining factor in PacifiCorp’s decision to terminate them. On review, the Appeals Court disagreed, finding that: 1) the couple had raised the necessary inference of discriminatory motive to establish a prima facie case of association discrimination through evidence that PacifiCorp monitored their son’s health care costs, and that the company was concerned about reducing overall health care costs; 2) there was temporal proximity between the relapse of the son’s cancer and the investigation by the company for time theft; 3) PacifiCorp was not able to present a legitimate business reason since had it treated similarly- situated employees differently; and 4) there were several irregularities in the company’s investigation of the couple for time theft. Trujillo v. PacifiCorp, CA10, No. 06- 8074, 5/ 7/ 08.
STORE PATRON HAS STANDING TO CHALLENGE ALL VIOLATIONS - In a recent Title III action under the ADA, the U. S. Court of Appeals for the Ninth Circuit ( WA, MT, ID, OR, CA, NV, AZ, AK, HI, GU, MP) decided that a store patron who has encountered or has personal knowledge of at least one barrier related to his disability when he files a complaint, and who has been deterred from attempting to gain access to the public accommodation because of that barrier, has suffered an injury in fact for the purpose of showing standing. Furthermore, the Court stated, a plaintiff may, in one suit, permissibly challenge all barriers in that public accommodation related to his specific disability and may conduct discovery to determine what if any other barriers affecting his disability existed at time he brought claim. “ It makes no sense to require a disabled plaintiff to challenge, in separate cases, multiple barriers in the same facility, controlled by the same entity, all related to the plaintiff’s specific disability,” wrote Circuit Judge Gould for the majority. “ We do not believe Congress would have intended such a constricted reading of the ADA which could render the benefits it promises largely illusory.” The Court found that the district court had properly granted summary judgment to a 7- Eleven convenience store operator on issues of whether the store’s aisle width and its refusal to allow plaintiff access to its employees- only restroom violated the ADA where the patron failed to introduce evidence that aisle- clearance was insufficient, or that the bathroom was a public accommodation subject to Title III of ADA. The Court, however, directed the lower court to allow the patron to present evidence of other alleged ADA violations found later during his expert’s inspection. Doran v. 7- Eleven, Inc., CA9, No. 05- 56439, 5/ 2/ 08 ( Duffy, C. J., dissenting).
INSUFFICIENT EVIDENCE TO SUGGEST DISCRIMINATORY NON- SELECTION - The U. S. ADA News No. 171 May 21, 2008
District Court for the D. C. Circuit recently affirmed summary judgment for the defend
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| Full Text | ADA News No. 167 January 29, 2008 ADA News Disabilities Law, News & Perspective Patrick H. Bair - Editor Number 167 January 2008 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. Recent issues of this newsletter can be found online on the Department website. All past issues of this publication are archived on the DEP internal website. EMPLOYEE WITH CANCER NOT DISABLED - The U. S. Court of Appeals for the Eleventh Circuit ( AL, GA, FL) has ruled that an employee with breast cancer is not substantially limited in a major life activity and therefore is not disabled under the Rehabilitation Act. The employee, a director of nursing, brought suit alleging disability discrimination and retaliation. She underwent two surgical procedures, chemotherapy and radiation and alleged that the side effects of her cancer treatment disabled her, as she was substantially limited in the major life activities of caring for herself, performing manual tasks, lifting and working. Specifically, she alleged that she had difficulty sleeping, hot flashes, fatigue and diarrhea as well as limited use of her right arm due to complications from surgery. When she returned to work, she complained that although she could complete all of her duties, she required additional time and needed frequent breaks attributable to fatigue. The Appellate Court held that she did not have a disability because “ the most severe periods of limitation that [ the nurse] suffered during her cancer treatment were short term, temporary and contemporaneous with her treatment.” Although the limitations were severe, the Court held they were not evidence of a disability because of their short- term and temporary nature. Garrett v. University of Alabama, CA11, Nos. 05- 10833 & 05- 11110, 11/ 15/ 07. SUPREME COURT CANCELS ADA HEARING - After agreeing to review and scheduling argument on a case that would have allowed the Court to interpret the ADA’s reassignment provision, the U. S. Supreme Court canceled oral arguments scheduled for this spring, and dismissed the case. The court said the dismissal was under Rule 46.1, which is invoked when both parties agree to a settlement. The case was accepted in order to resolve a conflict between federal circuits on the question whether the law grants an employee with a disability a right to be reassigned to another position when s/ he cannot be reasonably accommodated in any other way. The case below was Huber v. Wal- Mart Stores, CA8, No. 06- 2238, 5/ 30/ 07. DISABILITIES WEBSITE OF THE MONTH - Accessible Employment is a “ career site dedicated to creating employment opportunities for qualified workers with disabilities.” Started by the New ADA News No. 167 January 29, 2008 Jersey Business Leadership Network, this resource is designed to provide employers with one central place to post employment positions and search resumes of qualified candidates. Twenty- first century employers will require a diverse pool of skilled candidates to accomplish their goals. Our site is dedicated to closing the gap between employers searching for qualified workers and disabled candidates searching for employment. AccessibleEmployment. org allows employers to include qualified disabled candidates in their employee recruitment efforts. COURT VACATES UPS RULING - In a case last reported in ADA News No. 161, July 2007, the U. S. Court of Appeals for the Ninth Circuit ( WA, MT, ID, OR, CA, NV, AZ, AK, HI, GU, MP) has now decided to vacate its earlier ruling that UPS could not screen out all hearing impaired drivers and returned the case to the trial court for further proceedings. Bates v. UPS Inc., CA9, No. 04- 17295, 12/ 28/ 07 ( en banc). AREA CALENDAR - Working Life: Towards a Lifestyle of Employment For All; Webinar Series ( 4 Sessions); January 28- February 25, 2008; co- sponsored by Institute for Community Inclusion ( ICI), University of Massachusetts- Boston and APSE. 2008 Legal Issues Webinar: Employment and the ADA; ADA Audio Conference; first session January 22, 2008; series provides in- depth information on the ADA, Accessible Information Technology and other related topics; program is designed as a springboard to enhance an individual’s existing knowledge base or facilitate continued learning regarding regulations and trends under the ADA; more information at conference website 11th Annual Meeting of the National Birth Defects Prevention Network; February 10- 13, 2008; L'Enfant Hotel, Washington, D. C.; contact Amy P. Case at 512- 458- 7232 Ext 2814 for more information Accommodating Older Workers: Implications for Employers; February 19, 2008; On- line Seminar; disability increases with age and as the workforce ages, individuals with disabilities will make up a larger percentage of the workforce; implementing changes in the workplace to address the needs of this population will not only help older workers, but will benefit all workers; join this session to learn more about the types of accommodations that may be needed and strategies for implementation; for more information and registration, see the conference website 21st Annual Transition & Communication Consortium on Learning & Disability ( TACCLD) Conference; February 27, 2008; Blackwell Hotel and Conference Center, Ohio State University, Columbus, OH; conference for a network of individuals exploring ways to facilitate the transition of high school students with learning disabilities, ADD/ ADHD, psychiatric disabilities, autism, and Asperger’s Syndrome to the post secondary and vocational experience; more information and registration materials are available on the TACCLD website or via e- mail Advancing Disability Policy in an Election Year; March 2- 4, 2008; The Hyatt Regency ADA News No. 167 January 29, 2008 Hotel, Washington, DC; a pragmatic view on the unique challenges and opportunities facing the Congress and White House as the 2008 political campaign proceeds; for more information visit the conference website National Wheelchair Basketball Association ( NWBA) Division III National Tournament; March 13- 15, 2008; Ohio State University, Columbus, OH; double elimination tournament games to be played Thursday March 13 through Saturday March 15, 2008; games will use 3 courts in the Tom W. Davis events gym; for more information, e- mail or visit the tournament website Medical Inquiries/ Hiring/ Confidentiality; 2: 00- 3: 30 pm ET, March 4, 2008; Webinar; learn how to acquire, use and protect employee medical information to meet legitimate business needs without violating the ADA; session will review ADA and its regulations, EEOC guidance and recent case law decisions regarding acquisitions, use and protection of employee medical information, along with practical tips to assist with complying with these requirements under the ADA; for more information, see the DBTAC- Great Lakes ADA Center website 2008 National Forum to Prevent Heart Disease and Stroke; March 26- 28, 2008; The Marvin Center, George Washington University, Washington DC; contact Marsha Houston at 770- 488- 8270 for more information Disability Law: From tenBroek to the Twenty- first Century; April 10- 11, 2008; Jernigan Institute, Baltimore, Maryland; symposium will bring together many of the nation’s top disability law scholars, practitioners, and advocates to examine the current status of both American and international disability law and will act as a forum in which to discuss future change in the disability law of the United States; for more information, contact Lou Ann Blake at ( 410) 659- 9314, extension 2221, Charlie Brown at ( 410) 659- 9314, extension 2206, or visit the conference website Disability Harassment/ Retaliation/ Discipline; 2: 00- 3: 30pm ET, April 22, 2008; Webinar; session will review the ADA and its regulations and recent case law decisions and provide practical tips for navigating these new and complex areas of the law; for more information, see the DBTAC- Great Lakes ADA Center website Eighth Annual Multiple Perspectives on Access, Inclusion, and Disability Conference; April 22- 23, 2008; Blackwell Hotel Conference Center, The Ohio State University, Columbus, OH; conference continues the university’s efforts to bring together a diverse audience to explore disability as both an individual experience and social reality that cuts across typical divisions of education & employment; scholarship & service; business & government; race, gender & ethnicity; for more information visit the conference website The ADAPT Community: 25 Years of Activism and Counting; April 26- May 2, 2008; Washington, DC; celebrate ADAPT's 25th Anniversary with food, music, exhibits, history, multi- media, and faces from ADAPT past; celebration includes “ Fun Run for Disability Rights” and grassroots actions; contact ( 512) 442- 0252 or ( 303) 733- 9324 for more information, or ADA News No. 167 January 29, 2008 visit the ADAPT website Disabilities, Healthy Aging & Independent Living: World of Possibilities Expo; May 2- 3, 2008; Montgomery County Fairgrounds, Gaithersburg, Maryland; World of Possibilities Expos focus on abilities, healthy aging and independent living and are dedicated to improving the lives of children and adults with disabilities, seniors, their families and caregivers as well as health care and education professionals; for more information visit the World of Possibilities website Employer Best Practices: Recruitment and Hiring of People with Disabilities; May 20, 2008; On- line Seminar; session will highlight the best practices learned by the Walgreen Company and Cincinnati Children’s Hospital in regards to the recruitment and hiring of people with disabilities; participants will learn what it took within these organizations to mobilize administration, management as well as all employees in support of this effort and the benefits that they have realized as a result; for more information and registration, see the conference website Qualified as Related to Reasonable Accommodations such as Leave, Reassignment and Job Modifications; 2: 00- 3: 30pm ET, June 3, 2008; Webinar; session will review the ADA and its regulations, EEOC guidance, and recent case law decisions that focus on how certain accommodation requests relate to employees’ abilities to perform essential job functions; for more information, see the DBTAC- Great Lakes ADA Center website People on the Move: Using All Transportation Options ( ADA and Beyond...); June 2- 3, 2008 ( Apply by March 27); Washington, D. C.; free “ train the trainer” initiative to increase accessible transportation in your community; two- day training initiative offers teachers and trainers the basic tools needed to expand community transportation options; for more information visit the training website Stop A Lifetime of Problems: Prevent Childhood Lead Poisoning; June 3- 5, 2008; Crowne Plaza Hotel & Resort, Columbus, Ohio; contact Melody Sexton at 614- 728- 9453 for conference information Accommodating Employees with Psychiatric Disabilities in the Workplace; June 17, 2008; On- line Seminar; psychiatric conditions are the leading charge category for complaints filed with the EEOC; data gathered by the National Institute of Mental Health indicates that more than one in five American adults experiences some diagnosable mental disorder in a given year; session will address the realities of accommodating individuals with disabilities in the workplace and offer practical solutions for employers; for more information and registration, see the conference website 2008 UCP Annual Conference: Believable Hope - Life Without Limits; June 18- 21, 2008; Hyatt Regency on Capitol Hill, Washington, D. C.; focus on Believable Hope - Life without Limits as UCP demonstrates how to make this theme a reality; for more information e- mail , call ( 800) 872- 5827 or visit the UCP website ADA News No. 167 January 29, 2008 Rehabilitation Engineering and Assistive Technology Society of North America ( RESNA) 2008 Annual Conference; June 26- 30, 2008; Hyatt Regency Crystal City, Arlington, Virginia; conference is an interdisciplinary gathering of individuals and companies who share a common interest in rehabilitation engineering, assistive technology and disability issues in general; conference schedule ( to be announced at a later date) will include workshops and plenary sessions; dozens of meetings of committees, shared interest groups and professional specialty groups; for more information, visit the conference website 2008 National Career Development Association Global Conference ( NCDA) Conference; July 8- 11, 2008; Hyatt Regency Capitol Hill, Washington, DC; for more information visit the National Career Development Association Website ADA Update: 18 Years Later; July 15, 2008; On- line Seminar; listen to representatives of federal agencies present an update on their litigation, technical assistance and enforcement efforts over the past year; participants will have an opportunity to pose questions to the presenters regarding issues in their own workplace or community; for more information and registration, see the conference website ADA Coverage Beyond Actual Disability: Regarded As, Record Of and Association Disability; 2: 00- 3: 30pm ET, July 22, 2008; Webinar; session will review the ADA and its regulations; EEOC guidance and recent case law, as well as provide employers with information that will help them to avoid pitfalls that may be encountered when navigating this often overlooked area of the law; for more information, see the DBTAC- Great Lakes ADA Center website Nutrition Connections: People, Programs, Science, Community: FNS National Nutrition Education Conference; August 3- 5, 2008; Hyatt Regency Crystal City, Arlington, VA; contact Donna Blum- Kemelor at 703- 305- 2017 for more information, or visit the conference website ADA and Website Accessibility; 1: 00pm- 2: 00pm CT, August 11, 2008; On- line Seminar; courts have reached different conclusions as to whether websites are covered under the ADA; session will discuss recent legal developments and their potential implications; e- mail HERE for more information and registration Direct Threat/ Safety in the Workplace; 2: 00- 3: 30pm ET, September 23, 2008; Webinar; session will review the ADA and its regulations, EEOC guidance and recent case law and provide employers with information about conducting an individualized assessment and the role of reasonable accommodations to address a potential threat health and safety in the workplace; for more information, see the DBTAC- Great Lakes ADA Center website Learning and Accessibility; 1: 00pm- 2: 00pm CT, September 29, 2008; On- line Seminar; seminar will address strategies for businesses to improve their knowledge and implementation of accessible e- Learning; e- mail HERE for more information and registration SCHOOL MISTREATED HANDICAPPED SINGER, GRANDFATHER SAYS ( by Carrie Cassidy, The ADA News No. 167 January 29, 2008 Patriot- News, 1/ 1008) - Before his grandson’s concert Thursday night, Milton Watson argued with administrators at Susquehanna Township Middle School for what he called “ discriminating” treatment of his grandson. ( Thanks, Susan. - Ed.) CITY IS A ROUGH RIDE FOR WHEELCHAIR USERS ( by Daniel Rubin, Philadelphia Inquirer, 1/ 28/ 08) - Clifford Roberts, a violin maker, had to retire because of a neuromuscular disease. “ I find that Philadelphia is an extremely difficult city to get around,” he said. Read the rest of this troubling story HERE. Also regarding the City of Brotherly Love, go to the Department of Justice website to see the settlement agreement of a Title II action by John Gill Smith and the United States brought against the City of Philadelphia. AROUND THE WORLD - The National Council on Disability’s International Watch advisory committee met on November 1st. Discussion included updates from the United States Department of State and the United States Agency for International Development on their current disability inclusion efforts, including the work being done to more fully incorporate disability within the United States Country Reports on Human Rights Practices. The discussion also included the latest countries to sign the United Nations Convention on the Rights of Persons with Disabilities. As the time of this writing, 118 countries have signed the Convention and 7 countries have ratified. Three countries have also ratified the Optional Protocol. The Convention will enter into force on the 30th day following the 20th ratification or accession. The Optional Protocol will enter into force on the 30th day following the 10th ratification or accession. NCD’S CRIME VICTIMS UPDATE - On November 30, during the National Council on Disability’s Boston quarterly meeting, the NCD unanimously approved a motion in support of the Crime Victims with Disabilities Act of 2007 ( CVWD). On December 5, NCD chairperson John R. Vaughn carried out that motion by writing to the U. S. Senate Committee on the Judiciary in support of the CVWD. The NCD is gratified that Senate Bill 2237, the Crime Control and Prevention Act, which was referred to the Committee on the Judiciary on October 25, includes Title IX, Subtitle A, the CVWD. NCD is committed to the same goals espoused in the CVWD. On May 21, 2007, NCD issued a joint statement with the Association of University Centers on Disabilities and the National Center for Victims of Crime — Breaking the Silence on Crime Victims with Disabilities in the United States . Upon releasing this joint statement, the NCD announced that the ultimate goal of this partnership was to foster greater public awareness about crime victims with disabilities and to forge a national commitment to better serve this particularly vulnerable population. The NCD, along with its partners, calls for expanded research to establish the prevalence and impact of crime against persons with disabilities. The statement also calls for greater public education to raise awareness about the circumstances and needs of persons with disabilities who have been victimized by crime; public policy changes that integrate crime victims with disabilities and their needs into the current framework of federal, state, and local services; increased access to programs and services that will help crime victims with disabilities rebuild their lives; and a national leadership forum that will serve as a unifying and proactive voice for crime victims with disabilities. RESOURCES - Some disability/ employment- related resource material recently added to the catalog. 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. 167 January 29, 2008 The November and December editions of the National Council on Disability Monthly Bulletin is now available online. The January 2008 edition of the NCPAD News, 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. The December 2007 edition of Washington Watch, a publication of The Arc and United Cerebral Palsy, is now available on line. Washington Watch provides in- depth news and analysis on disability policy from Washington. ( This link opens a Word document.) The December 2007 issue of Tapping Technology, a quarterly newsletter from the Maryland Department of Disabilities is currently available on the MD TAP website. News and Notes is the monthly newsletter of The Family Center on Technology and Disability. The newsletter is devoted to a different topic each month. The December 2007 edition contains information about “ Free Open Source Assistive Technology.” The latest edition of the bi- monthly newsletter of the ADA& IT Information Center for the Mid- Atlantic Region, is now available online with disability- related resources, news, and many other items of interest. The latest edition of In Focus, the newsletter of the U. S. Department of Labor, includes up- to- the- minute news about the Department and the Secretary of Labor. Health & Disability Digest is a quarterly, online publication highlighting the latest news from the National Center on Birth Defects and Developmental Disabilities ( NCBDDD). It includes updates on RTOI projects and fellowships, information and resources on public health and disabilities services, and events for individuals with disabilities, family members, professionals and other stakeholders. The Winter 2008 edition is now online. AUCDigest is a monthly newsletter that highlights the news, initiatives, and events occurring throughout the American University Centers on Disability ( AUCD) Network and the disability community. It also includes news from the AUCD National Office, including a regular message from the president of AUCD, funding opportunities, and employment opportunities. The latest edition is available online. Issue No. 22 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 now available online. This month’s issue includes reports on projects in new York City’s Madison Square Garden, increasing accessibility at Pennsylvania’s Swarthmore College and an update on the lawsuit against the University of Michigan. Enforcing the ADA: A Status Report from the Department of Justice, October - December 2006 covers the ADA activities of the Department of Justice during the fourth ADA News No. 167 January 29, 2008 quarter of 2006. This report, previous status reports, and a wide range of other ADA information, including the consent decrees and formal settlement agreements mentioned in this report, are available through the Department’s ADA Home Page. Planning for Inclusion: Implementing an Accessibility Management Program in a Parks and Recreation Business Model, a new document written by Jennifer Skulski of the National Center on Accessibility, describes how people with disabilities are still experiencing significant barriers at recreation facilities and parks and offers insight into how an accessibility management program can be successful. Entering the World of Work: What Youth with Mental Health Needs Should Know about Accommodations? is a new Department of Labor fact sheet that provides information on disclosure, accommodations and examples of reasonable accommodations for youth with mental health needs entering the workforce. New Publication from the National Institute of Mental Health on Eating Disorders - This booklet describes symptoms, causes, and treatments of eating disorders and where to find information and help. Building on the Ticket: A New Paradigm for Investing in Economic Self- Sufficiency for People with Significant Disabilities. Final report from the Ticket to Work Panel to the President and Congress. Includes five recommendations for changes to SSA programs. EEOC Report: Federal Employment of Individuals with Targeted Disabilities - The U. S. Equal Employment Opportunity Commission ( EEOC) this month issued a comprehensive report addressing strategies to reverse the declining participation rate of federal employees with targeted disabilities. The full text of the report, Improving the Participation Rate of People with Targeted Disabilities in the Federal Work Force, is available on the EEOC’s web site. SELF- RELIANCE SWINGS INTO PLACE: MECHANICAL BACKPACK HELPS WHEELCHAIR RIDERS REACH THEIR BELONGINGS ( by Tim Blangger, The Morning Call, 12/ 31/ 07) - In 1993, Jorge Letechipia had an idea. While working as a rehabilitation technician at Allentown's Good Shepherd Rehabilitation Hospital, he noticed many wheelchair- bound patients could not reach the backpacks fastened behind their chairs. Why not design a device that would make it easier for patients to add or remove items from the backpacks, without having to ask someone for help? The basic idea of the Swing Pack was born. U. S. SENATORS ANNOUNCE APPROVAL OF THEIR LEGISLATION TO EXTEND FAMILY, MEDICAL LEAVE FOR FAMILIES OF WOUNDED SOLDIERS ( from WorkersCompensation. com) - Senators Chris Dodd ( D- CT) and Hillary Rodham Clinton ( D- NY) announced that the U. S. Senate has approved their legislation, The Support for Injured Servicemembers Act, as part of the Department of Defense authorization conference report. Having now been approved by both chambers of Congress, the bill now goes to the President's desk to be signed into law. PAUL G. HEARNE AWARD - Nominations are being sought for the American Bar Association’s annual Paul G. Hearne Award for Disability Rights. Anyone may nominate an individual or an organization that has made significant contributions to furthering the rights, dignity, and access to justice for people with disabilities. Examples of eligible organizations include: ( 1) disability advocacy organizations; ( 2) a law firm or law practice; ( 3) a state or local bar association; ( 4) a nonprofit legal services program; ( 5) a law school clinic or academic- affiliated program; or ( 6) a law- related program providing representation for people with disabilities. Self- nominations are not permitted. A nomination form is available on the ABA website. TOP DISABILITY STORIES OF 2007 - The votes have been counted and the results are in. Inclusion Daily Express readers have chosen the top disability rights stories of 2007. The stories are in no particular order, according to Editor Dave Reynolds. SUMMER INTERNSHIPS FOR COLLEGE STUDENTS WITH DISABILITIES - Apply for an Emerging Leaders Summer Internship. Application deadline is January 31, 2008. Eligible applicants must have a qualified disability under the ADA, have completed at least 60 university- level credits, have at least a 3.0 GPA, maintain full- time student status for the semester following the internship ( graduating seniors immediately continuing to graduate school may apply), and be US citizens or legal aliens. SUPER BOWL ( AD) PREVIEW - The competition for best Super Bowl ad is often better than the game itself. Why wait until Sunday? Get a first look now at Pepsi’s new “ Bob’s House” ad scheduled to be broadcast during the game. The ad was created by EnAble, a network in Pepsi which supports diversity and the inclusion of persons with different abilities. COMING UP NEXT MONTH - February is a short but full month. You may actually need the extra day this year in order to mark American Heart Month, Wise Health Consumer Month, National Children’s Dental Health Month, AMD/ Low Vision Awareness Month, Kids E. N. T. ( Ears, Nose, Throat) Month, Age- Related Macular Degeneration/ Low Vision Awareness Month, Prenatal Infection Prevention Month; February 3- 9 is National Burn Awareness Week, 4- 8 is Pride in Food Service Week, 7- 14 is Congenital Heart Defect ( CHD) Awareness Week, 10- 16 is National Cardiac Rehabilitation Week, Duchenne Muscular Dystrophy Awareness Week, Cardiovascular Professionals Week, National Heart Failure Awareness Week, National Condom Week, National Children of Alcoholics Week and National Child Passenger Safety Awareness Week; 16- 23 is National Porphyria Week, 24- March 1 is National Eating Disorders Awareness Week; February 1st is Give Kids A Smile Day and National Women’s Heart Health Day, the 3rd is National Wear Red Day, the 6th is National Girls and Women in Sports Day, the 11th is World Day of the Sick, the 14th is National Condom Awareness Day and National Blood Donor Day, the 15th is National Women’s Heart Health Day. ADA News No. 167 January 29, 2008 ADA News No. 168 February 29, 2008 ADA News Disabilities Law, News & Perspective Patrick H. Bair - Editor Number 168February 2008 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. Recent issues of this newsletter can be found online on the Department website. All past issues of this publication are archived on the DEP internal website. FOURTH CIRCUIT AFFIRMS JURY VERDICT FOR EMPLOYEE PERCEIVED AS DISABLED - The U. S. Court of Appeals for the Fourth Circuit ( WV, VA, NC, SC, MD) has affirmed a $ 197,000 jury verdict against a South Carolina manufacturer, Phoenix Specialty Manufacturing Company, for firing a shipping supervisor it “ regarded as disabled” in violation of the Americans with Disabilities Act. This case is a good example of the role e- mail can play in a “ regarded as” claim. The company’s president stated in an e- mail to an assistant that the supervisor “ qualifies for ADA designation.” Even though the e- mail was sent more than a year before the supervisor was terminated, the Court found that it was an early example of how the company erroneously believed the supervisor had a disability, “ a perception that continued … until his termination,” according to the Court. The employer also was found to have perceived the supervisor as disabled because it ignored a doctor’s note releasing him to work without restrictions, avoided him whenever possible, and expressed a belief that he was substantially limited in his ability to see, use a computer, and perform manual tasks. Although the district court found that the company owed ( and breached) a duty of reasonable accommodation to the supervisor even though he was not actually disabled, the Fourth Circuit refused to affirm on that ground. Wilson v. Phoenix Specialty Mfg. Co., CA4, No. 06- 1818, 1/ 23/ 08. PUNITIVE DAMAGES AWARD AFFIRMED BY FOURTH CIRCUIT - The U. S. Court of Appeals for the Fourth Circuit in January affirmed a $ 100,000 punitive damage award to a former FedEx package handler who is deaf. The employee is unable to either speak or read lips, but is fluent in American Sign Language which is his primary language. While participating in an EEOC conciliation process, FedEx discharged the employee, citing poor attendance as the reason for its decision. The handler sued. The federal trial court awarded him $ 8,000 in compensatory damages and $ 100,000 in punitive damages, premised on a jury finding against FedEx for failing to reasonably accommodate him under the ADA. The award in the case was based on the employee’s approximately three years of employment, during which time the package handler was routinely denied interpreter services for employee meetings, training, and safety briefings despite repeated requests. The Court rejected ADA News No. 168 February 29, 2008 FedEx’s arguments that the award was excessive, finding that FedEx, despite awareness of its obligations under the ADA and the employee’s need for accommodation, acted with “ reckless indifference” to the employee’s ADA rights. EEOC v. Federal Express Corporation, d/ b/ a FedEx Express, CA4, No. 06- 1724, 1/ 23/ 08. DISABILITIES WEBSITE OF THE MONTH - “ I feel like I am independent,” “ I don’t need to depend on my mom and dad to take me places,” and “ Now I can ride the bus to get to my job and to the movies with my friends.” These are some of the reactions from youth and adults with disabilities who have gained independence and mobility due to the simple fact that they can now get a ride to work, school, the mall or the library. The challenge of coordinating transportation services so that individuals with disabilities have an easier time accessing transportation in their communities is one that is being addressed by the federal government. As a result of an Executive Order issued in 2004, the Federal Interagency Coordinating Council on Access and Mobility has launched United We Ride. United We Ride is an initiative that includes eleven federal departments working together to simplify access, reduce duplication, and enhance cost efficiencies in community human service transportation. HOUSE HOLDS ADA RESTORATION ACT HEARING - The U. S. House of Representatives Committee on Education and Labor this month heard testimony on legislation that would change two major elements of the Americans With Disabilities Act. Intended to remedy court decisions that have significantly narrowed the scope of the ADA, the ADA Restoration Act ( H. R. 3195) would change the definition of “ disabled” by eliminating the requirement that individuals be substantially limited in a major life activity. It would also require that courts ignore mitigating measures when determining whether an individual qualifies as disabled. AREA CALENDAR - 2008 Disability Policy Seminar: Advancing Disability Policy in an Election Year; March 2- 4, 2008; Hyatt Regency Washington Capitol Hill, Washington, DC; AUCD, The Arc of the United States, United Cerebral Palsy, AAIDD, and the National Association of Councils on Developmental Disabilities are joining together again to host the 2008 Disability Policy Seminar; the organizations will look to their extensive grassroots networks to advocate in a bipartisan manner for national public policies promoting the full inclusion of people with disabilities in our society; see the conference website for more details Art Show & Reception; 6: 00 PM - 8: 00 PM, March 13, 2008; Pittsburgh, PA; the second show presented by the 2008 Centre Art Gallery is Earth & Water by photographer Nancy Spear, Ph. D. whose work to date has centered on land and marine scapes with particular interest in the natural harmony of colors and shadows; click here for more information about Nancy Spear and her work; light refreshments will be provided; for more information about the reception, please email info@ ucppittsburgh. org or call Sheila Smith at ( 412) 683- 7100 The Nature and Scope of Discrimination in Hiring Under ADA Title I; March 18, 2008; On- line Seminar; over 20,000 allegations of workplace discrimination specific to hiring were investigated and closed by the EEOC through 2005; researchers have uncovered some surprising facts about the nature and scope of hiring discrimination related to characteristics ADA News No. 168 February 29, 2008 of the charging parties, employers, and outcomes; these findings and their ramifications for the implementation and future of ADA will be discussed; for more information and registration, see the conference website ADA Transportation: General Rules Applying to All Modes of Transportation; March 26, 2008; Webcast; focus on stop announcements and equipment maintenance; information at conference website UCP Central Pennsylvania Magic Night 2008: The White Tie Event; 6: 00 PM, March 29, 2008; Hilton Harrisburg & Towers, Harrisburg, PA; join UCP as they celebrate UCP Central PA’s 22nd annual Magic Night with The White Tie Event; join us for The White Tie Event and help advance the goal of seeing every individual— no matter what their age or ability— grow and develop to their full potential; contact Casey Hurst at 1- 800- 998- 4827 for information Abilities Expo 2008; March 28- 30, 2008; New Jersey Convention and Expo Center, Edison, New Jersey; Abilities Expo 2008 will feature the latest products and services designed to enhance the lives of people with disabilities; exhibit hall will be packed with vendors, live equipment demonstrations, and special events throughout the event; accessible workshop programs consisting of consumer and professional tracks, with certificates of participation available to students, and education and healthcare professionals are also available; more information at conference website, via e- mail or by telephone to 212- 895- 8231 Aging in America: 2008 Conference of the National Council on Aging ( NCOA) and the American Society on Aging ( ASA); March 26- 30, 2008; Marriott Wardman Park Hotel and Omni Shoreham Hotel, Washington, DC; the most dynamic educational conference and networking opportunity in North America for professionals in the field of aging; a diverse, multi- disciplinary community of more than 3,500 professionals from the fields of aging, healthcare, and education, along with business leaders from across the United States; for information, visit the conference website Active Living Research Annual Conference: Connecting Active Living Research to Policy Solutions; April 9- 12, 2008; The Madison, a Loews Hotel, Washington, DC; breakfast roundtable discussions, multiple keynote speakers, plenary and concurrent presentations, as well as policy- relevant panel presentations are present throughout the conference agenda; for more information, call 619- 260- 5534, fax 619- 260- 1510; e- mail ALR@ projects. sdsu. edu, or visit the conference website All Star Labor Basketball Classic; 1: 00 p. m. tip- off, Sunday, April 13, 2008; St. Joseph's University, Philadelphia, PA; experience on- the- court action when the Philadelphia area’s best high school seniors ( boys and girls) match talents in two “ city vs. suburbs” basketball games, sponsored by Philadelphia’s Organized Labor; in its 21st year, the All Star Labor Classic offers a day of fun for the entire family; there will be an exhibition game, cheerleaders, prize giveaways and more; in addition to benefitting children and adults with disabilities in the Greater Philadelphia area, this event awards scholarships to the student athletes for their continuing education; tickets are free for students, $ 5 for adults; call UCP’s Development Department for tickets and information at 215- 242- 4200, ext. 289 or email ADA News No. 168 February 29, 2008 seucp@ ucpphila. org UCP Yard Sale; 8: 00 AM - 3: 00 PM, April 18, 2008; Hanover Office, UCP of South Central PA, 788 Cherry Tree Court, Hanover, PA; sale benefits Children’s Programs of United Cerebral Palsy of South Central PA; lots of gently used children’s clothing, toys, and household items priced to sell; for more information, please contact Special Events Coordinator at 717- 632- 5552 Putting the Pieces Together: PEPNET (“ Postsecondary Education Programs Network”) Biannual Conference; April 15- 18, 2008; Hyatt Regency, Columbus, Ohio; conference participants typically include administrators, counselors, interpreters, tutors, and faculty members from disability services, student development, developmental studies and college- level courses; for more information, for information, contact Marcia Kolvitzat by phone at ( 865) 974- 0607, by e- mail to pepnet- south@ utk. edu, or visit the Pepnet- South Website Assistive Technology Fair; 2: 00 PM - 7: 00 PM, April 24, 2008; Pittsburgh, PA; the UCP Family Advocacy Network will be hosting an Assistive Technology Vendors Fair that will enable visitors to see the newest technology first hand and learn about services from the experts; vendors representing a variety of products will be present to answer any AT questions; there will be two speakers during the day, one who will address AT funding sources and the other will discuss choosing a successful communication device; for more information, contact Connie Campbell at ( 412) 683- 7100 x2211 2008 Mobility Planning Services Institute; April 21– 24, 2008; Renaissance Washington Hotel, Washington, DC; sponsored by Project Action; for more information go to the conference website UCP 5K Corporate Run/ Walk; April 24, 2008; Philadelphia Museum of Art, Philadelphia, PA; more than 1,200 participants representing over 40 Philadelphia area companies will gather on the steps of the Philadelphia Museum of Art for a five- kilometer ( 3.1 mile) race along MLK Drive; runners and walkers of all ages and abilities are encouraged to participate; team and individual registration will be accepted; prizes will be awarded in individual and team categories; in addition to a beautiful route along the river, there will be lots of fun and food on the plaza; new this year, UCP’s Young Leadership Board will be hosting an After Party sponsored by The Graham Company at Jack’s Firehouse; register online or print a UCP 5K registration brochure ADA Paratransit; April 30, 2008; Webcast; part of DREDF Transportation Series; for more information, see the conference website Walk for a Healthy Community; May 3, 2008; Heinz Field, Pittsburgh, PA; this year UCP of Pittsburgh is participating in the Walk For A Healthy Community presented by HIGHMARK; event benefits over 30 human service non- profits; participants can enjoy a 1 mile fun walk or 5K walk around the North Shore of Pittsburgh; registration begins at 7: 45 a. m. with the 5K walk beginning at 9 a. m. and the 1 mile fun walk at 9: 15 a. m.; participants will be allowed to view the Coca Cola Great Hall in Heinz Field; all of the proceeds that UCP of Pittsburgh raises ADA News No. 168 February 29, 2008 this year will be directed to the UCP Kids Program; register online HERE, or call ( 412) 683- 7100 x2153 for more information Early Stage Town Hall Meetings - Alzheimer’s Association; May 12, 2008; Grand Hyatt Hotel, Washington, D. C.; if you have early- stage Alzheimer's or a memory disorder, joining the Alzheimer's Association at a gathering for people with dementia to talk about living with the disease; for more information visit the conference website Public Policy Forum - Alzheimer’s Association; May 12- 14, 2008; Grand Hyatt Hotel, Washington, D. C.; Alzheimer advocates from across the country gather at the Forum to learn about key policy priorities and meet with Members of Congress to discuss priority Alzheimer issues; for more information visit the conference website UBS Motor Cars Under the Stars; June 4, 2008; Cairnwood in Bryn Athyn, PA; sponsored by UBS Financial Services, the Philadelphia Area Jaguar Dealers and the Land Rover Retailers of the Delaware Valley, this event consistently attracts close to 700 attendees; proceeds will be used to support United Cerebral Palsy Family Resource Services that provide support to families when they have unexpected emergencies or need to acquire assistive technology or adaptive equipment; guests will stroll the grounds of industrialist John Pitcairn’s estate and view a spectacular display of classic automobiles from private collections, along with modern- day classics from Jaguar and Land Rover; for sponsorship, advertising and ticketing information, please contact Willa Kravitz at 215- 248- 7609 2008 National High School Center Summer Institute: NHSC Conference; June 18- 20, 2008; The Madison Hotel, Washington, DC; for more information visit the NHSC Website 2008 UCP Benefit Golf Tournament; June 23, 2008; North Hills Country Club, North Hills, PA; the 2007 UCP Benefit Golf Tournament had close to 100 golfers on the course at and raised $ 55,000 for UCP programs; for more information about this year’s event, contact the Development Department at 215- 242- 4200, ext. 289 or e- mail seucp@ ucpphila. org Community Partners Concert; 8: 00 PM, June 26, 2008; Heinz Hall, Pittsburgh, PA; the Pittsburgh Symphony Orchestra will be holding its annual Community Partners Concert, this year featuring Isaac Hayes and the 2008 Sphinx Competition Winner, conducted by Lawrence Loh; ticket proceeds benefit your Community Partner of choice and go on sale March 1st; for tickets, call PSO at ( 412) 392- 4900 or 800- 742- 8560, or visit the Symphony website WCD Expo; July 11- 12, 2008; Greater Reading Expo Center, Reading, PA; WCD Expo and Conference is dedicated to improving the lives of those with developmental and physical disabilities, their families and professionals who work with them; for more information, contact Mark Dineen at 201- 722- 9233, ext 114; or visit the conference website LIFE’S WORK: I'M ILL, BUT WHO REALLY NEEDS TO KNOW? ( by Lisa Belkin, NYTimes, 2/ 21/ 08) - Many Americans struggle to decide whether or not they should inform their boss or colleagues about a chronic illness. Read this fascinating article from the New York Times HERE. ADA News No. 168 February 29, 2008 NCD SAYS OLDER YOUTH WITH DISABILITIES FALLING THROUGH CRACKS IN FOSTER CARE SYSTEM - The National Council on Disability ( NCD) has released a new report, Youth with Disabilities in the Foster Care System: Barriers to Success and Proposed Policy Solutions. The report focuses on the unique challenges older youth with disabilities face as they negotiate the foster care system. According to NCD Chairperson John R. Vaughn, “ The goal for our country’s youth is to live healthy, happy lives and to become self- sufficient, contributing members of society as adults. However, there are subsets of youth who cannot reach these goals with ease. These youth need additional supports to assist them in their journey toward a healthy adulthood, as they are more vulnerable than the ‘ average’ youth and thus are more apt to fall through the cracks during their journey. Youth development researchers have determined that some specific youth populations are more vulnerable than others. This report examines one exceptionally challenged group in particular: older youth ( specifically, preteens through young adults) with disabilities who are involved in the foster care system. The child welfare community generally accepts the fact that, while the American foster care system has come a long way in recent years, there is still much to be done to ensure the health and well- being of the children and youth it serves. Likewise, the disability community has seen great improvements in recent years but still advocates for additional needed change. But what is often overlooked among experts in both of these realms is the idea that foster care is indeed both a child welfare issue and a disability issue. This is due to the alarmingly high numbers of foster youth with mental, developmental, emotional, learning, and physical disabilities. The purpose of this report, therefore, is to shift the lens through which youth advocates and service providers view the importance of ensuring the well- being of foster youth. This new lens asserts the importance of understanding the prevalence of disability among foster youth and better ascertaining who should be held accountable for this uniquely challenged and often under- served population,” Vaughn concluded. AROUND THE WORLD - British Triathlon launches groundbreaking National Disability Championship ( RunnersWeb. com, 2/ 27/ 08) - British Triathlon will become the first Governing Body in the world to offer a national event exclusively for disabled triathletes when the British Disabled Triathlon Championships supported by Wrigley’s Airwaves gets underway on 1 June. The race will take place as part of the Rother Valley Triathlon festival held in Rother Valley Country Park, just outside Rotherham in South Yorkshire. The inclusion of the Disabled Championships is a culmination of years of hard work and recent development projects supported by British Triathlon’s Premier Sponsor, Corus. British Triathlon and event organisers, One Step Beyond Promotions, will be catering for all categories of disability, which requires all of the athletes needing to be classified. This is either carried out weeks before the event or during the registration process. Organising a race of this nature also has its own issues to overcome, for instance it is surprising how much space a racing wheel chair needs in transition. Read the rest of this story HERE. COMMUNITY HEROES NOMINATIONS NEEDED - UCP of Pittsburgh is accepting nominations for the Community Heroes Awards Dinner to be held Wednesday, October 22, 2008, at The Westin Convention Center Pittsburgh. Each year, UCP honors Community Heroes, individuals or associations, who have enhanced the quality of life for people in our community. They have increased awareness of issues confronting people with disabilities or brought about meaningful change in the community. Nomination forms should be completed and returned to Marci Sloan, Development Director, by April 1, 2008. ( Please note: Individuals do not have to have a disability in order to be nominated.) If you have any questions, please contact Marci Sloan at ( 412) 683- 7100 ADA News No. 168 February 29, 2008 ext. 2153 or at msloan@ ucppittsburgh. org. RESOURCES - Some disability/ employment- related resource material recently added to the catalog. 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). The January edition of the National Council on Disability Monthly Bulletin is now available online. The February edition of the NCPAD News, 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. The March 2008 issue of Tapping Technology, a quarterly newsletter from the Maryland Department of Disabilities is currently available on the MD TAP website. News and Notes is the monthly newsletter of The Family Center on Technology and Disability. The newsletter is devoted to a different topic each month. The January 2008 edition contains information about the challenge of making sure that children with disabilities and their Assistive Technology are a match. The latest edition of the bi- monthly newsletter of the ADA& IT Information Center for the Mid- Atlantic Region, is now available online with disability- related resources, news, and many other items of interest. The Winter 2008 Edition of ADA in Focus, the quarterly magazine of the ADA Information Center for the Mid- Atlantic Region, is currently available. Featured is an article about planning accessible events. The latest edition of In Focus, the newsletter of the U. S. Department of Labor, includes up- to- the- minute news about the Department and the Secretary of Labor. Health & Disability Digest is a quarterly, online publication highlighting the latest news from the National Center on Birth Defects and Developmental Disabilities ( NCBDDD). It includes updates on RTOI projects and fellowships, information and resources on public health and disabilities services, and events for individuals with disabilities, family members, professionals and other stakeholders. The January 2008 edition is now online. Legislative News InBrief is a weekly publication of AUCD, available online HERE. Life Without Limits is the monthly e- newsletter of United Cerebral Palsy ( UCP), free from the organization's website. The February 2008 issue is now available and includes an article about D. J. Gregory, a young man with CP who has decided to walk every PGA Tour event during the 2008 regular season ( 38 weeks of travel and 37 events) and blog about it. ADA News No. 168 February 29, 2008 UCPeople is a weekly newsletter designed for UCP affiliates. The latest edition includes a story about ABC’s hit show “ Extreme Makeover: Home Edition.” Download the latest edition of UCP’s weekly Capitol Insider and read about what is happening in disability public policy in Washington, DC. AUCDigest is a monthly newsletter that highlights the news, initiatives, and events occurring throughout the American University Centers on Disability ( AUCD) Network and the disability community. It also includes news from the AUCD National Office, including a regular message from the president of AUCD, funding opportunities, and employment opportunities. The latest edition is available online. The National Employment Law Institute issues periodic OFCCP/ Affirmative Action Newsletters intended to provide periodic updates of developments at the Office of Federal Contract Compliance Programs ( OFCCP) regarding Affirmative Action compliance so that contractors can be aware of these issues. The February 2008 edition of the newsletter is now available. ( This link opens a PDF document.) Sidewalk Videos from U. S. Access Board Available Online - A four- part video series on accessible sidewalks that illustrates issues and considerations in the design of sidewalks is now available online through the Access Board’s website. The videos are open- captioned and incorporate running descriptive audio. To access these videos, go to the Board website. THE VOICE ( Volume Fourteen, Issue Three) - a periodical about UCP- related activities in and around Pittsburgh, published by UCP Pittsburgh, this newsletter is available online. Disabled sue for access to GGRNA lands including properties in Pacifica ( by Kyveli Diener, MediaNews, 2/ 20/ 2008) - Disability rights activists initiated a class action federal lawsuit against the Golden Gate National Recreational Area. The GGNRA provides Bay Area residents with sprawling beaches, parks, and historical landmarks, including Milagra Ridge, Mori Point and Sweeney Ridge in Pacifica and Phleger Estate in San Mateo County. Frustration over a lack of special access for those with disabilities has prompted the federal court suit brought against the park by disability- rights advocates. GGNRA officials said they have been working with the advocates and hope to continue to do so. Read how they are doing HERE. U. S. PARALYMPICS: BOSTON BRUINS ALUMNI TO PARTICIPATE IN 24- HOUR HOCKEY GAME; SPORT OF ICE SLEDGE HOCKEY TO BE FEATURED ( from Assistive Technology News, 2/ 26/ 08) - Colorado Springs, Colorado - Boston Bruins alumni will participate in a 30- minute ice sledge hockey match February 29 at the New England Sports Center in Marlborough, Mass. The game will give fans a glimpse at ice sledge hockey, a sport that will inhabit the same venue next month as the 2008 International Paralympic Committee ( IPC) Ice Sledge Hockey World Championships, March 27 – April 5 come to Marlborough. The ice sledge hockey game featuring Bruins alumni will serve as an exciting component of the first- ever 24- Hour Hockey Game, in which one 30- minute running- time game in each of the nation's 50 states will be played consecutively. The first game starts in Maine at noon EST on Friday, February 29. The IPC Ice Sledge Hockey World Championships competition will host over 150 athletes with physical disabilities and will be held by U. S. Paralympics, a division of the U. S. Olympic Committee, in collaboration with Massachusetts Hockey. It will also serve as the most critical stop on the road to the 2010 Paralympic Winter Games in Vancouver, Canada. Charlie Huebner, Chief of U. S. Paralympics, said the 24- Hour Hockey Game will provide great momentum for the IPC Ice Sledge Hockey Championships and will also help create awareness about the sport of sledge hockey. “ The fact that this illustrious game will be featured in Marlborough is invaluable to the promotion of Paralympic sport,” Huebner said. “ It gives the general public the opportunity to learn more about the sport of ice sledge hockey, and it provides Americans with physical disabilities the ability to learn about the many opportunities that exist in sport.” For the 24- hour game in each state, one team has been designated as " Stars" and one team as " Stripes." A national running score will be kept at the event website. Players of all ages, backgrounds and skill sets will participate in the event. The mite ( 8 & Under), squirt ( 10 & Under), pee wee ( 12 & Under), bantam ( 14 & Under), midget ( 18 & Under), high school, junior, college ( non- varsity), disabled, inline and adult levels of hockey will be represented, spanning across 100 teams. Just as in ice hockey, ice sledge hockey is played with six players ( including a goalie) at a time. Players propel themselves on their sledge by use of spikes on the ends of two three- foot- long sticks, enabling a player to push himself as well as shoot and pass ambidextrously. Rinks and goals are regulation Olympic- size, and games consist of three 15- minute periods. COMING UP NEXT MONTH - March is National Colorectal Cancer Awareness Month, National Kidney Month, National Nutrition Month, National Poison Prevention Month, American Red Cross Month, National Chronic Fatigue Syndrome Awareness Month, National Eye Donor Month, Hemophilia Month, Mental Retardation Awareness Month, Multiple Sclerosis Education & Awareness Month, National Professional Social Work Month, Save Your Vision Month, Sports Eye Safety Month, Workplace Eye Safety Month, National Brain Injury Awareness Month, Child Life Month, and National Endometriosis Awareness Month; March 2- 8 is National Patient Safety Awareness Week, Juvenile Arthritis Awareness Week, Dental Assistants Recognition Week and National Collegiate Health and Wellness Week, 3- 7 is National School Breakfast Week, 9- 15 is National Pulmonary Rehabilitation Week, 10- 16 is Brain Awareness Week and Problem Gambling Awareness Week, 16- 22 is National Inhalants and Poisons Awareness Week and National Poison Prevention Week, 30 - April 5 is Root Canal Awareness Week and 31- April 6 is National Sleep Awareness Week; March 13th is World Kidney Day, the 24th is World Tuberculosis Day, the 25th is American Diabetes Alert Day, the 30th is Doctor’s Day and the 31st is Kick Butts Day. ADA News No. 168 February 29, 2008 ADA News No. 169 March 26, 2008 ADA News Disabilities Law, News & Perspective Patrick H. Bair - Editor Number 169March 2008 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. Recent issues of this newsletter can be found online on the Department website. All past issues of this publication are archived on the DEP internal website. NURSE UNSUCCESSFUL IN TERMINATION LAWSUIT - Intriguing facts underlie a recent decision by the U. S. Court of Appeals for the Eighth Circuit ( ND, SD, NE, MN, IA, MO, AR) in its review of a lower court decision upholding the termination of a nurse with a history of drug abuse. The nurse, who was placed in a Minnesota state program requiring close supervision because of her history of drug abuse and theft, was fired when the hospital in which she worked could not provide the constant supervision she required. She sued, charging that she had been fired because of her former dependency. The lower court, affirmed by the Appellate Court, found that the nurse did not have a disability. This case is “ unique because [ the nurse’s] claimed disability has a peculiar feature,” stated the Court. “ Certain behavior, while consistent with her claimed disability, also happens to be illegal. Such conduct is not protected by the ADA.” Under the ADA, “ the term ‘ individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.” While the nurse claimed that she was currently sober, she argued that she would be disabled if she relapsed. The Court rejected this reasoning. “ Under the ADA, [ the nurse] is not protected from the consequences of illicit conduct explainable by her chemical dependence, such as diverting hospital drugs intended for patients to personal use.” The nurse also contended “ that because of her chemical dependency she is precluded from the major life activity of working.” The Court dismissed this claim as well, finding that her testimony was that her dependency did not affect her outside of work and that she had been employed steadily as a nurse for several years. Finally, the Court also rejected her claim that the hospital regarded her as disabled. “ The record does not support her allegation that St. Cloud knew she was substantially limited in some major life activity or that St. Cloud regarded her as such.” Surprisingly, it does not appear that the nurse tried to show the existence of discrimination based on a “ record or history of disability.” Dovenmuehler v. St. Cloud Hospital, CA8, No. 07- 1096, 12/ 4/ 07. DID FOREMAN REQUEST REASONABLE ACCOMMODATION? - That question was not answered in a December opinion from the U. S. Court of Appeals for the Sixth Circuit ( MI, OH, KY, TN) that reviewed the claim of a tree service foreman who had missed 17 days of work. On his return, the foreman presented his supervisor with materials about bipolar disorder and disability law. The ADA News No. 169 March 26, 2008 employer, assuming that the foreman was requesting a reasonable accommodation, requested medical documentation of his condition, directed he submit to an independent medical examination and placed him on indefinite leave. When the foreman refused to provide the requested documentation, he was fired. The foreman filed suit, charging that his rights under the FMLA and ADA had been violated. The trial court dismissed his claim, finding that by giving his employer the materials, he had requested an accommodation, thus entitling the employer to request medical documentation. On appeal, the foreman argued that he had never requested an accommodation and, therefore, the trial court erred in finding for the employer. The Appellate Court, however, found for the employer on another basis; that the foreman’s 17- day absence was proof that he could not perform an essential function of his position, i. e., attendance. (“ An appellate court can affirm on other grounds,” states the opinion, “ so long as the opposing party is not denied an opportunity to respond even when a district court has relied on an erroneous basis to grant a party summary judgment.”) The Court found that it was reasonable for the employer to assume that the foreman’s bipolar disorder would affect his attendance since he had already missed work. ( The company had discharged the foreman once before for failing to show up for work.) The Court brushed aside the foreman’s arguments that his performance had previously been rated “ excellent,” stating “[ j] ob performance is separate from the ability to show up for work, an essential function of his position.” The question whether he had actually requested an accommodation was left unanswered. Denman v. Davey Tree, CA6, No. 06- 2588, 12/ 27/ 07. DISABILITIES WEBSITE OF THE MONTH - The “ online wing” of the Museum of disABILITY History complements the freestanding bricks and mortar museum in Williamsville, NY. The Museum is dedicated to advancing the understanding, acceptance and advancement of people with disabilities. The Museum’s collections, exhibits, archives and educational programs create awareness and a platform for dialogue and discovery. Take a tour! It’s free. FMLA AMENDED - The recently signed Defense Authorization Act for Fiscal Year 2008 contains a provision amending the Family and Medical Leave Act ( FMLA), increasing the amount of job- protected family medical leave for a family member to care for a member of the armed forces who is injured in the line of duty. The amendment, termed “ Service Member Family Leave,” allows an employee who is the spouse, son, daughter, parent, or next of kin of a covered service member up to 26 weeks of unpaid leave to care for that service member. The 26 weeks is limited to a single 12- month period. AREA CALENDAR - Access by Design: From Minimum Compliance to Universal Design; 2: 00- 5: 30 p. m., April 21, 2008; Ohio State University; a discussion of the mandate to provide basic access will provide a foundation for a tour of the various standards for access and their interrelationships; examples drawn from experience and selected settlement agreements resulting from court cases and enforcement agency initiatives will provide a context for exploring the principles of Universal Design; for more information, see the NCD website ( scroll to bottom of webpage) ADAPT Fun Run/ Roll; April 27, 2008; Upper Senate Park, Washington D. C.; for more information, contact Bob Kafka at 512- 431- 4085 or visit the ADAPT website ADA News No. 169 March 26, 2008 Recruitment and Retention of a Qualified Worker; April 29 and May 20, 2008; Teleconference; presenters will provide data on national trends in the child welfare workforce and the multiple costs of workforce issues for agencies, children and families, and an overview of promising strategies developed by the grantees to improve recruitment, selection and retention; a child welfare administrator who has taken a comprehensive approach to addressing workforce issues will discuss the steps taken and the difference this has made in a Colorado county; for more information visit the teleconference website ADAPT 25th Anniversary Celebration; May 1, 2008; Holiday Inn Capitol, Washington, D. C.; for more information, contact Bob Kafka at 512- 431- 4085 or visit the ADAPT website Visions of Hope and Opportunity in Developmental and Learning Disabilities; May 5- 9, 2008; Crowne Plaza Manhattan Hotel, New York City, New York; special focus on Autism Spectrum Disorders; more than 300 speakers and 180 breakaway sessions are available; presentations by Dr. Temple Grandin, Richard Lavoie and Dr. Jed Baker; for more information visit the conference website Workforce Diversity: Diversity and Disability in the Workplace; May 20- 21, 2008; Richmond, VA; co- sponsored by the Virginia Business Leadership Network, an in- depth “ train- the- trainer” event, focused on disability awareness, with the employment provisions of the ADA integrated throughout each of five training modules; more info and register at training website Mental Health America ( MHA) 2008 Conference; June 4– 7, 2008; Hyatt Regency Washington Capitol Hill, Washington, D. C.; each year, the Mental Health America Conference draws together hundreds of leaders and advocates from across the country to learn about critical issues in the behavioral health field and strategies for collective action; attendees include executives and staff from MHA’s 320 state and local affiliates, mental health consumers, family members, policymakers, advocates, providers, and academic, government and business leaders; for conference info, contact Danielle Fritze, or visit the conference website 2008 Society for Disabilities Conference; June 19- 22, 2008; New York City, NY; a rich, professional arts program, the greater inclusion of people with intellectual disabilities, and the ability to showcase work of applied social scientists and senior scholars, as well as that of new scholars and new directions for the field; for more information please visit the conference website National Consortium for Physical Education and Recreation for Individuals with Disabilities Annual Summer Conference; July 17- 19, 2008; AAHPERD Headquarters, Reston, VA; for more information, contact Cindy K. Piletic, Ph. D. at 309- 298- 1058, or refer to the NCPERID website National Presidential Candidate Forum; July 26, 2008; Veteran's Memorial, Columbus, OH; celebrate the 18th Anniversary of the ADA; hosted by the Ohio Disability Vote Coalition ADA News No. 169 March 26, 2008 and major national sponsors; for more information, contact Sue Hetrick National VISIONS 2008 Conference; August 8- 10, 2008; Hyatt Regency Crystal City, Arlington, Virginia; conference provides the opportunity for sight- impaired individuals and their families to learn about recent developments in medical research, daily living skills, and products and services for members of the low vision community; conference also offers science lectures, information sessions, and exhibits, and networking opportunities through underwriting of sessions and social events; conference is sponsored by The Foundation Fighting Blindness; for more information, e- mail L. Gorsuch, call 410- 568- 0168, or visit the conference website JUSTICE DEPARTMENT REACHES SETTLEMENT WITH UNIVERSITY OF MICHIGAN CONCERNING FOOTBALL STADIUM’S ACCESSIBILITY FOR PERSONS WITH DISABILITIES ( from the DOJ website, 3/ 10/ 08) – The Justice Department announced today that it has resolved a lawsuit against the University of Michigan under the Americans with Disabilities Act ( ADA). The Justice Department and the Michigan Paralyzed Veterans Association brought suit to challenge the lack of accessible seating in the university’s football stadium. Today, the federal district court in Detroit entered a consent decree resolving the lawsuit. Under the settlement agreement, the university – which is currently in the midst of a $ 226 million expansion of the stadium – will add over 200 wheelchair and companion seats to the stadium during the next two years. Read the rest of this DOJ Release HERE. AROUND THE WORLD - People with disability in Canada can be positive contributors ( by Jingyuan, ChinaDaily. com. cn, 3/ 26/ 08) Over six years ago, a young deaf Canadian man, full of enthusiasm and passion, created the website Whistlerforthedisabled. com all by himself to be a resource for disabled people. It has become the leading website of its kind in North America. On it Hugh Tollett has collected information on accessible facilities for the disabled. He still continues to work hard on improving his website. His perseverance, friendliness and sincerity impress those who meet this determined young man. When explaining the primary goal of building the website, his assistant said Tollett wanted to give visitors, both able- bodied and disabled as many opportunities as possible to participate in the invigorating mountain lifestyle of Whistler. Tollett is also eager to inform people that accessibility is more important today than before. He says it's not just because of the upcoming 2010 Olympics and Paralympics – accessibility is important in everyday life and everybody should be more aware of it. In Canada, the population with disabilities is growing, so planning effectively for people with disabilities right now can ensure society will be more inclusive in the future. In Tollett's view, a person with a disability doesn't mean he can't contribute positively to the society. His experience in the past couple of years clearly illustrates the disabled can do a lot of work and do it very well. On his website there is a map of Whistler where facilities like washrooms, shops and ramps for wheelchairs are shown in symbols. In this way, everyone coming from all over the world can find the information they need easily whatever their native tongue is. Currently Tollett is running the website by himself and looking for funding and assistance from the government, society and organizations. Having overcome all kinds of difficulties, he is still sticking to his goals and has become more ambitious He now wants to help people with disabilities worldwide by making resources available to them on the Internet. In Canada, one out of every eight people has a disability. For many years, the Canadian government has worked hard to create an environment that is accessible and nondiscriminatory for everyone. ADA News No. 169 March 26, 2008 JOB BIAS CHARGES RISE 9% IN 2007, EEOC REPORTS ( Washington, DC) – The U. S. Equal Employment Opportunity Commission received a total of 82,792 private sector discrimination charge filings last fiscal year, the highest volume of incoming charges since 2002 and the largest annual increase ( 9%) since the early 1990s, the agency reported today as part of its Fiscal Year 2007 enforcement and litigation statistics. Read the EEOC report HERE. LAW ENFORCEMENT NEEDS BETTER UNDERSTANDING OF DISABLED PEOPLE ( Mike Ervin, MCT Forum, 2/ 19/ 08) - Law enforcement personnel need more training about how to interact with persons with disabilities. The videotape of a quadriplegic man being dumped from his wheelchair by a sheriff's deputy while in custody in Florida has stirred outrage and has led to the unpaid suspension of the deputy. For the 1.6 million people like me who use wheelchairs, the incident is particularly galling. Read the rest of this interesting story HERE. RESOURCES - Some disability/ employment- related resource material recently added to the catalog. 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). The February edition of the National Council on Disability Monthly Bulletin is now available online. The March 2008 edition of the NCPAD News, 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. News and Notes is the monthly newsletter of The Family Center on Technology and Disability. The newsletter is devoted to a different topic each month. The February 2008 edition contains information about Summer Camp ‘ 08: The Break That Refreshes. The latest edition of the bi- monthly newsletter of the ADA& IT Information Center for the Mid- Atlantic Region, is now available online with disability- related resources, news, and many other items of interest. The latest edition of In Focus, the newsletter of the U. S. Department of Labor, includes up- to- the- minute news about the Department and the Secretary of Labor. Life Without Limits is the monthly e- newsletter of United Cerebral Palsy ( UCP), free from the organization's website. The March 2008 issue is now available and includes articles about Cheryl Hines and golfer D. J. Gregory. UCPeople is a weekly newsletter written for UCP affiliates. The latest edition includes a story about Shakespeare with Heart, the UCP of Central Florida ( UCP- CFL) summer program. AUCDigest is a monthly newsletter that highlights the news, initiatives, and events occurring throughout the American University Centers on Disability ( AUCD) Network and the disability ADA News No. 169 March 26, 2008 community. It also includes news from the AUCD National Office, including a regular message from the president of AUCD, funding opportunities, and employment opportunities. The latest edition is available online. Issue No. 23 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 now available online. This month’s issue includes reports on efforts to improve the accessibility of prisons and jails and a note on a successful mediation in Pennsylvania. Download the latest edition of UCP’s weekly Capitol Insider and read about what is happening in disability public policy in Washington, DC. Legislative News InBrief is a weekly publication of AUCD, available online HERE. Podcast Series: Disability Law Lowdown - Brought to you by nationally recognized leaders in the field of disability law, the Disability Law Lowdown Podcast delivers the latest in disability rights information every other week. Nice refresher course on law and its origins, too. You can subscribe for free and have shows automatically delivered, or you can listen to the show and read the transcripts from this site. Removing Barriers: Planning Meetings That Are Accessible To All Participants - Sponsored by the North Carolina Office on Disability and Health, this publication highlights basic guidelines and strategies to help organizations make their meetings accessible and welcoming to people with disabilities. Arranging Accessible Meetings - The fundamental issues to consider when arranging a meeting that allows for the attendance and participation of people with disabilities. Guidelines for Universal Design of Exhibits - This document is meant to challenge your thinking as you pursue a universal approach to design. The enclosures and reference material will provide you with additional stimulation and the technical knowledge for creating appropriate exhibit designs. Accessible Conferences - Have you been tasked with planning a conference that is accessible to everyone? This course will help you plan and/ or host accessible meetings, conferences, etc. The guidelines provide you with what you need to know to comply with Sections 504 and 508 of the Rehabilitation Act. Latinos with Disabilities in the United States: Understanding & Addressing Barriers to Employment - A report from Proyecto Visión examining the low employment status of Latinos with disabilities and recommendations for improvements. An executive summary of the report is available online HERE. The report is also available in Spanish HERE. Accessible Sidewalks video - A series of videos on designing accessible sidewalks is available on the U. S. Access Board’s website. ADA News No. 169 March 26, 2008 EEOC Addresses Employment of Veterans with Service- connected Disabilities – The U. S. Equal Employment Opportunity Commission has issued two question- and- answer guides providing technical assistance for employers and veterans on workplace issues affecting veterans with service- connected disabilities. Both documents are available on the EEOC web site. Veterans with Service- Connected Disabilities and the Americans with Disabilities Act ( ADA): A Guide for Employers briefly explains how protections for veterans with service- connected disabilities differ under the Uniformed Services Employment and Re- employment Rights Act and the ADA, and then describes how the ADA in particular applies to recruiting, hiring, and accommodating veterans with service- connected disabilities. Veterans with Service- Connected Disabilities in the Workplace and the Americans with Disabilities Act answers questions that veterans with service- connected disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look to find their first, or new, civilian jobs; explains changes or adjustments that veterans may need, because of their injuries, to apply for, or perform, a job, or to enjoy equal access to the workplace; and includes resources on where veterans can find more information about the employment rights of individuals with disabilities. DISABILITY SAVINGS ACCOUNTS - On March 11, Senators Chris Dodd ( D- CT), Bob Casey ( D- PA) and Orrin Hatch ( R- UT) introduced legislation to allow families to create disability savings accounts for their children with disabilities. Senator Dodd’s bill is the Disability Savings Act of 2008 ( S. 2741), and the Casey- Hatch bill is the Financial Security Accounts for Individuals with Disabilities Act of 2008, ( S. 2743). Similar to the Section 529 accounts to save for future higher education, these accounts would be designed for long- term savings to assist an individual with disabilities in meeting his/ her future needs. A House bill, Financial Security Accounts for Individuals with Disabilities Act of 2007, H. R. 2370, was introduced by Representative Ander Crenshaw ( R- FL) in May, 2007. WASHINGTON, DC COUNCIL PASSES NEW PAID SICK LEAVE LAW - The Washington, DC City Council has passed a law making it mandatory that employers offer paid sick leave to all employees in the District. The Council unanimously approved the legislation, called the “ Accrued Sick and Safe Leave Act of 2007,” on March 4, 2008. The measure, which would become law 30 days after the Mayor signs the bill, unless Congress intervenes, requires employers to provide three to seven paid sick days per year, depending on the number of employees. Employees must be employed for at least one year to be eligible for paid sick leave. Wait staff is completely exempt from this bill. Under the bill, workers can use sick days for absences from work resulting from physical or mental illness or injury or the need for preventative care for one’s self or to care for a child, parent, spouse or domestic partner. Additionally, if the employee or the employee’s family member is a victim of stalking, domestic violence or sexual violence, these paid sick days can be used to obtain psychological or other counseling. Companies may apply for a “ hardship” exemption under the bill. “ Hardship” will be defined by the Mayor. The specific definition of “ hardship” could have a significant impact on employers who currently do not provide sick leave to employees. The definition, which will likely include economic hardship, will determine the full extent of the coverage of this legislation. Currently, San Francisco is the only city requiring employers to provide paid sick leave to employees. San Francisco’s law went into effect in February 2007. The San Francisco law does not provide for victims of stalking, domestic violence or sexual violence. DISABLED WORKERS FEEL VULNERABLE AS JOBS VANISH ( by Jocelyn Wiener, Sacramento ADA News No. 169 March 26, 2008 Bee, 3/ 25/ 08) - Kevin Schmidt, a 21- year- old with attention deficit disorder, cried when he learned that his job mopping and vacuuming at a tech company was being phased out. Steve Ambrunn, 26, who has developmental disabilities, felt “ mad” after he was laid off from his janitorial job at a construction supply company. “ Having a disability, most places won't even hire,” said Christian Johnson, 33, who became cognitively impaired after hitting his head in a childhood skateboarding accident. “ I could be out looking, but I'm not going to find anything.” As the economy sours, advocates for people with disabilities are expressing concern about that population's already bleak employment prospects. A 2004 Cornell University study showed just 37.5 percent of the nation's working- age people with disabilities were employed, compared with 77.8 percent of those without disabilities. Read the rest of this sobering story HERE. 7- ELEVEN’S UPGRADE OF POINT OF SALE EQUIPMENT PRAISED BY BLIND COMMUNITY: TACTILE DEVICES WILL PROTECT FINANCIAL PRIVACY ( ATechNews, 3/ 18/ 08) – Several organizations representing the blind community today commended 7- Eleven, Inc. for installing tactile point of sale ( POS) devices that will protect the privacy and security of 7- Eleven shoppers with visual impairments. These new devices include tactile keys arranged like a standard telephone keypad, and enable 7- Eleven store shoppers who have difficulty reading information on a touch- screen to privately and independently enter their PIN and other confidential information. 7- Eleven has installed the new devices at more than 2,000 stores in the U. S. Over the next 18 months, all flat- screen devices in 7- Eleven’s 5,500 U. S. stores will be replaced with the tactile units. Today’s announcement is the result of collaboration between 7- Eleven and blindness organizations including the American Council of the Blind ( ACB), the American Foundation for the Blind ( AFB), and the California Council of the Blind. Speaking for the organizations, ACB President Mitch Pomerantz praised 7Eleven, saying, “ Blind customers across the country will benefit from 7- Eleven’s decision to replace technology that cannot be used by customers who cannot see information on a flatscreen.” Pomerantz added, “ 7- Eleven has set an example for other retailers by recognizing that persons with visual impairments should not have to disclose confidential information when purchasing products and services.” 7- Eleven is also ensuring that the ATMs and Vcom machines in its stores nationwide are accessible as well. ATMs and Vcoms in 7- Eleven stores will contain a “ talking ATM” function, allowing independent use by blind customers. AIRLINES TACKLE WHEELCHAIR NEED ( by Barbara De Lollis, USA TODAY) - Ellen Brehm, a retired nurse who walks with a cane, was stranded last September after flying home from California following the annual trip she's been taking with college friends since 1947. Her flight, which had departed six hours late, landed at Newark at about 1: 20 a. m. The wheelchair service she'd requested was nowhere in sight. Brehm returned to the plane to sit and wait, but a flight attendant told her she must get off so the crew could leave. She then stood on the jet bridge, balancing on her cane, to wait. About 30 minutes later, another flight attendant exited the plane and asked if she needed help. The woman eventually returned with a wheelchair attendant. " Here I am, at 2 a. m., 83 years old, all by myself," Brehm says. " There wasn't one person in this whole huge airport. I don't know what I would have done if she hadn't come out." Airlines are obligated to provide free, prompt wheelchair assistance between curbside and cabin seat to comply with the 21- year- old Air Carrier Access Act, an anti- discrimination law. But, as more disabled and elderly people take flight in today's congested air system, many are finding that the assistance is difficult to get. In the three years that the government has issued statistics, more than 34,000 disabled fliers have complained about their treatment, and 54% of the incidents have involved wheelchair assistance. Read the rest of this story HERE. 2007- 2008 UCP OF CENTRAL PA ATTITUDES ESSAY CONTEST UNDERWAY - UCP Central PA and SchmidtKramer PC Ask Students to “ Show a Little Attitude” - It’s that time of year again! UCP Central PA has just kicked off the annual UCP/ SchmidtKramer Attitudes Essay Contest for the 2007- 08 school year. The intent of the contest is to reduce attitudinal barriers between people with and without disabilities, while highlighting the writing skills and instinctive insight of the young people throughout our Central PA community. Some essays created new ways of thinking or talking about people with disabilities; some criticized the stereotypes that have historically limited people with disabilities. Above all, the essays have illustrated the amazing insight and basic kindness of each author. Read more about the contest HERE. COMING UP NEXT MONTH - National Alcohol Awareness Month, National Cancer Control Month, National STDs/ Family Planning Awareness Month, National Autism Awareness Month, Candlelight Vigil for Eating Disorders Awareness Month, Cesarean Awareness Month, Child Abuse Prevention Month, Counseling Awareness Month, National Donate Life Month, National Facial Protection Month, National Humor Month ( no kidding!), IBS ( Irritable Bowel Syndrome) Awareness Month, National Occupational Therapy Month, Sexual Assault Awareness Month, Women’s Eye Health and Safety Month, National Youth Sports Safety Month, Stress Awareness Month, National African- American Women's Fitness Month, National Sarcoidosis Awareness Month, Sports Eye Safety Month; March 30- April 5 is National Healthcare Access Personnel Week, April 6- 12 is National Public Health Week, 13- 19 is National Health Information Privacy & Security Week, Week of the Young Child and Heimlich Maneuver Week, 20- 26 is National Minority Cancer Awareness Week, National Medical Laboratory Professionals Week, TV- Turnoff Week, Organ and Tissue Donor Awareness Week, National Electroneurodiagnostic Week and National Volunteer Week, 21- 25 is National Playground Safety Week, 21- 27 is Medical Fitness Week, 25- 27 is Global Youth Service Day, 26- 27 is WalkAmerica March of Dimes, April 26 - May 4 is National SAFE KIDS Week, 27- May 3 is Infants Immunization Week, National Foot Health Awareness Month; April 5th is YMCA Healthy Kids Day, 5- 8 is Alcohol Free Weekend, the 7th is World Health Day, the 10th is National Alcohol Screening Day, the 16th is International Noise Awareness Day and World Voice Day, the 22nd is Earth Day, the 26th is World Tai Chi and Qigong Day. ADA News No. 169 March 26, 2008 ADA News No. 170 April 30, 2008 ADA News Disabilities Law, News & Perspective Patrick H. Bair - Editor Number 170April 2008 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. Recent issues of this newsletter can be found online on the Department website. All past issues of this publication are archived on the DEP internal website. ENGINEER’S SUSPENSION NOT DISCRIMINATORY - The U. S. Court of Appeals for the Third Circuit ( PA, NJ, DE, VI) issued a decision last month in a case in which a locomotive engineer challenged an order of the United States District Court for the Eastern District of Pennsylvania granting summary judgment to the employer Norfolk Southern Railway on his claims that the employer violated his rights under the ADA when it suspended him for nine months based on a belief that his condition did " not permit safe performance of the essential functions of [ his] position." The employee claimed that he had a non- limiting impairment, ischemia, that the employer mistakenly regarded as being an impairment that substantially limited him in the major life activity of pumping and circulating blood. The Court disagreed. Under the ADA, “ an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment … are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.” The employer did precisely what the ADA allowed: it decided that because of the employee’s ischemia, he should not be working as a locomotive engineer given the possibility, however slight, that while performing his duties he could suddenly become incapacitated with potentially disastrous results. Moreover, the employer’s actions in suspending the employee demonstrated that it believed that the employee’s impairment did not substantially limit him. The employee failed to adduce any evidence raising a triable issue of material fact as to the employer’s belief that the employee’s impairment was substantial. Snyder v. Norfolk Southern Railway Corp., CA3, No. 06- 5084, 3/ 3/ 08. ADA PROHIBITS ASSOCIATION DISCRIMINATION AGAINST EMPLOYEES - The U. S. Court of Appeals for the Seventh Circuit ( WI, IL, IN) has reversed the dismissal of a nurse’s claim of association discrimination against a hospital in an ADA lawsuit. The nurse claimed that a self- insured hospital fired her because it viewed the cost of her husband’s cancer treatment as inordinately high. The nurse was hired by Proctor Hospital in September 2001and worked as a clinical manager, supervising other nurses and hospital staff members. The nurse’s supervisor rated her performance as “ outstanding.” Throughout the nurse’s employment at the hospital, her husband suffered from prostate cancer. His medical treatment was continuous and expensive and was paid for through the ADA News No. 170 April 30, 2008 hospital’s self- coverage. The nurse and her husband were covered under Proctor’s health insurance plan, which was largely self- funded— the hospital paid for members’ covered medical costs up to $ 250,000 each year, with costs in excess of that amount covered by an insurance policy. Proctor reviewed medical coverage costs periodically and documented medical claims in quarterly “ stop- loss” reports, which listed all employees whose medical claims had exceeded $ 25,000 within the quarter. The nurse’s claims were listed on reports in 2003, 2004 and 2005. In September 2004, the nurse was confronted by her supervisor, who told her that a committee was reviewing her husband’s medical expenses, which the hospital felt were unusually high. The supervisor then asked the nurse about the type of treatment being received by her husband for his cancer. When she responded that her husband received both chemotherapy and radiation, the supervisor asked whether she had considered hospice care, a less expensive alternative. The nurse responded that her husband’s doctor considered hospice care to be premature. In February 2005, the supervisor again raised the treatment issue and was told that the nurse’s husband’s status had not changed. At a meeting of clinical managers in May 2005, the supervisor informed employees that the hospital was facing financial troubles and would take “ creative” efforts to cut costs. Proctor fired the nurse in August 2005, and designated her as “ ineligible to be rehired in the future.” Proctor provided no explanation for its “ ineligible for rehire” decision. The nurse filed a lawsuit against Proctor, alleging age, gender and disability discrimination claims. The district court granted summary judgment to the hospital on all three claims. On appeal, the Circuit Court upheld the dismissal of the age and gender claims, but reversed as to the ADA claim, finding a factual dispute on the issue of whether the hospital’s action was based on “ association discrimination.” The Court found that association discrimination may have motivated Proctor to fire the nurse and that a jury should be allowed to decide the claim. While her case seems compelling, the concurring opinion by Judge Posner raises an interesting issue, and one that may have changed the outcome of the case. Posner pointed out that the hospital failed to produce any evidence of a nondiscriminatory reason for terminating the nurse. If, in fact, that information had been available to the court, it may have allowed the case to be reviewed under a “ shifting burden” analysis. Had the hospital been able to provide a legitimate business reason for the nurse’s termination, the burden may have shifted back to her to prove that the proffered reason was simply a pretext for discrimination. Dewitt v. Proctor Hospital, CA7, No. 07- 1957, 2/ 27/ 08. DISABILITIES WEBSITE OF THE MONTH - ADA Training Resource Center: Your One- Stop for Courses, Events & Tools on the Americans with Disabilities Act, a Project of the DBTAC National Network of ADA Centers. This website was developed by the DBTAC National Network of ADA Centers as a comprehensive resource for training materials on the ADA. This website features a centralized search for training materials such as case law, case studies, handouts, statistics and quotes, and TIPS sheets, and also contains information about various events and training opportunities such as webcasts, audio- conferences, and courses. Additionally, there are “ Solutions” pages that highlight events, materials, and FAQs on the ADA for: Individuals and Advocates; Architecture and Design Professionals; Business Owners and Managers; Employers; and State & Local Government entities. REFUSAL TO HIRE IMPAIRED WORKER NOT DISABILITY BIAS ( by Linda Coady, Esq., Andrews Publications Staff Writer) - A refinery’s refusal to hire an applicant who admitted to suffering from weakness on the right side of his body did not violate disability laws, a federal judge in Houston has ruled. U. S. District Judge Ewing Werlein said the Equal Employment Opportunity Commission did not show that Lyondell- Citgo Refining LP regarded Steve Aleman as disabled or that it discriminated ADA News No. 170 April 30, 2008 against him based on his record of disability in violation of the ADA. “ An employer may freely decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job without violating the ADA,” the judge said. According to the EEOC's complaint, Aleman applied for a job as an operator trainee at LCR and underwent physical ability and pre- placement physical testing. During the physical ability test, he disclosed that he had undergone brain surgery some years before. He passed the physical ability test, and the company made him a conditional offer of employment. During the pre- placement physical test Aleman noted on his medical history form that he previously sustained a head injury that required hospitalization and experienced seizures and weakness in the right side of his body, the opinion says. Based on information Aleman provided, the doctor who conducted the pre- placement physical test determined that he could not safely climb ladders, which the operator job required. LCR withdrew its employment offer based solely on the doctor's recommendation, it says. Aleman filed a discrimination charge with the EEOC, and the agency filed suit on his behalf in the U. S. District Court for the Southern District of Texas. The complaint alleged that LCR violated the ADA by refusing to hire Aleman because he was disabled and had a history of disability. Judge Werlein granted the refinery's motion for summary judgment. The judge explained that to be regarded as disabled, a plaintiff must show that he has a physical or mental impairment that does not substantially limit major life activities but is treated as disabled by the employer. LCR said it withdrew the job offer because it believed that Aleman could not safely climb ladders, according to Judge Werlein. However, climbing has not been deemed a “ major life activity” for purposes of the ADA, he said. A major life activity is a “ basic, necessary function” such as walking, seeing or breathing, the judge said. In this case, LCR seemed to be aware that Aleman’s impairment might affect activities other than climbing, Judge Werlein said. “ Awareness of an impairment, however, cannot alone prove that the employer regarded an employee as disabled,” he said. The judge dismissed the disability claim, saying the EEOC did not show that Aleman's impairment, as LCR perceived it, was substantially limiting. The agency alleged in the alternative that Aleman is covered by the ADA because of a “ record of disability.” A plaintiff has a record of disability if he has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities, Judge Werlein explained. While the EEOC contended that Aleman's history of seizures and right- side weakness can be substantially limiting, it did not present evidence that those impairments “ actually posed substantial limitations to Aleman's ability to walk, stand, balance or, indeed, to engage in any recognized major life activity,” Judge Werlein said. AREA CALENDAR - PA Office of Deaf & Hard of Hearing Community Forum; 6: 30 p. m to 8: 30 p. m., May 1, 2008; Doylestown Branch, Bucks County Free Library, Doylestown, PA Summit on Accommodating Students with Disabilities in Online Learning; May 19- 20, 2008 ( registration deadline: May 5, 2008); Columbus, Ohio; summit hosted by Disability Compliance in Career and Online Learning ( DCCOL); discuss how institutions of higher education can and should meet the challenges presented in assuring full access to online educational programming for students with disabilities; to receive registration materials or for further information, contact: e- mail DCCOL or Jane Jarrow, or call 614- 370- 1780 Introduction to Olmstead; May 5- 23, 2008; online course; participants will learn about the ADA News No. 170 April 30, 2008 background and significance of the U. S. Supreme Court Olmstead decision; for more information and registration, see the course website Hear Now & Forever; May 12, 2008; Genetti’s Hotel & Conference Center, Wilkes- Barre, PA; sponsored by the PA Office of Deaf & Hard of Hearing; the Luzerne Intermediate Unit will be hosting Hear Now & Forever to honor Better Hearing and Speech Month; conference highlights include exhibit hall, educational sessions, hearing conservation program for middle school students, a community emergency preparedness information workshop, a luncheon and keynote address; Keynote Speaker is Justin Osmond, son of Merrill Osmond from the Osmond Brothers Singing Group; for more information, contact Sue Zerfoss at 570- 287- 9681 ext. 177 PA Office of Deaf & Hard of Hearing Deaf Town Meeting; 6: 30 p. m to 8: 30 p. m., May 15, 2008; Doylestown Branch, Bucks County Free Library, Doylestown, PA Assistive Technology for Students; May 15, 2008; Walter Johnson HS Cafeteria, 6400 Rock Spring Dr., Bethesda, MD; for more information, see the conference website PA Office of Deaf & Hard of Hearing Deaf Town Meeting; 6: 30 p. m to 8: 30 p. m., May 16, 2008; Days Inn Meadville Conference Center, Meadville, PA PA Office of Deaf & Hard of Hearing Community Forum; 6: 00 p. m to 8: 00 p. m., May 21, 2008; Country Inn and Suites, Pottsville, PA PA Office of Deaf & Hard of Hearing Deaf Town Meeting; 6: 30 p. m to 8: 30 p. m., June 9, 2008; Radisson Inn, Monroeville, PA PA Office of Deaf & Hard of Hearing Community Forum; 6: 30 p. m to 8: 30 p. m., September 12, 2008; Courtyard by Marriott, Erie, PA PA Office of Deaf & Hard of Hearing Community Forum; 6: 30 p. m to 8: 30 p. m., September 15, 2008; Sheraton Greensburg, Greensburg, PA PA Office of Deaf & Hard of Hearing Deaf Town Meeting; 6: 30 p. m to 8: 30 p. m., October 10, 2008; Quality Inn, Hermitage, PA Autism: Update on Diagnosis and Intervention through Adolescence; October 23- 24, 2008; The Conference Center at Sheppard Pratt, Baltimore, MD; Kennedy Krieger Institute’s Annual Autism Conference; for more information call 877- 850- 3372 COMPLETE STREET ACT INTRODUCED - Senator Tom Harkin has introduced an act for “ Complete Streets” to make streets safe and usable for all users, including disabled pedestrians. “ Making our streets bike and pedestrian friendly is a win- win for us all,” said Harkin. “ It not only promotes healthier lifestyles, it lowers the amount of traffic congestion that many people deal with every day.” Harkin’s proposal has been endorsed by: AARP, America Bikes, America Walks, American Council of the Blind, American Planning Association, American Public Transportation Association, American Society of Landscape Architects, Association of Pedestrian and Bicycle Professionals, League of ADA News No. 170 April 30, 2008 America Bicyclists, National Center for Bicycling and Walking, Safe Routes to School National Partnership, Smart Growth America, Surface Transportation Policy Partnership, Thunderhead Alliance, and Rails to Trails Conservancy. AROUND THE WORLD - UN Disabled Rights Charter Gets Key OK ( by Frank Jordans, TownHall. com, 4/ 4/ 08) A U. N. convention to protect the rights of the world’s disabled people has been ratified by enough countries to take effect, the U. N. rights chief said Friday. Ecuador’s approval Thursday brought to 20 the number of countries ratifying the charter, meaning it will become legally binding in those countries May 3. “ I cannot stress enough the importance of this groundbreaking convention, which fills an important gap in international human rights legislation affecting millions of people around the world,” U. N. High Commissioner for Human Rights Louise Arbour said. A further 106 states have signed the convention, signaling their intention to ratify it in the future, according to Arbour’s office. The U. S. and some other nations have said they will not sign it, arguing that it would dilute the strength of their own laws. The U. N. estimates there are 650 million people around the world with disabilities. The Convention on the Rights of Persons with Disabilities was approved by the U. N. General Assembly in December 2006. The convention is seen as a blueprint to end discrimination against the physically and mentally disabled. It requires countries to guarantee freedom from exploitation and abuse for the disabled, while protecting rights they already have. This includes voting and property rights, as well as requirements to make buildings more accessible. Despite the decision not to sign, American officials say the U. S. has a strong record on rights for the disabled, citing the 1991 Americans with Disabilities Act that grants equal access and protection to all persons with disabilities. “ We believe that what’s important is for countries to strengthen their national legislation, rather than to sign new international conventions,” said the U. S. State Department’s special representative for social issues, Grover Joseph Rees. OFFICE FOR THE DEAF AND HARD OF HEARING ( ODHH) TO HOST MEETINGS - If you are deaf or hard of hearing and would like to know what services the PA ODHH can provide, you are invited to attend an upcoming Deaf Town Meeting or Community Forum for People with Hearing Loss. SIGN LANGUAGE INTERPRETER FUND - The Pennsylvania Bar Association has established the Sign Language Interpreter Fund/ CART Fund to reimburse attorneys who use sign language interpreters or Communications Access Realtime Translation ( CART) services to communicate with clients or potential clients. Follow this link for more information on the fund. RESOURCES - Some disability/ employment- related resource material recently added to the catalog. 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). The March edition of the National Council on Disability Monthly Bulletin is now available online. The April 2008 edition of the NCPAD News, 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. ADA News No. 170 April 30, 2008 The March 2008 edition of Washington Watch, a publication of The Arc and United Cerebral Palsy, is now available on line. Washington Watch provides in- depth news and analysis on disability policy from Washington. ( This link opens a Word document.) News and Notes is the monthly newsletter of The Family Center on Technology and Disability. The newsletter is devoted to a different topic each month. The March 2008 edition contains information about “ The Evolution of AT.” The latest edition of the bi- monthly newsletter of the ADA& IT Information Center for the Mid- Atlantic Region, is now available online with disability- related resources, news, and many other items of interest. The latest edition of In Focus, the newsletter of the U. S. Department of Labor, includes up- to- the- minute news about the Department and the Secretary of Labor. Health & Disability Digest is a quarterly, online publication highlighting the latest news from the National Center on Birth Defects and Developmental Disabilities ( NCBDDD). It includes updates on RTOI projects and fellowships, information and resources on public health and disabilities services, and events for individuals with disabilities, family members, professionals and other stakeholders. The April 2008 edition is now online. UCPeople is a weekly newsletter written for UCP affiliates. AUCDigest is a monthly newsletter that highlights the news, initiatives, and events occurring throughout the American University Centers on Disability ( AUCD) Network and the disability community. It also includes news from the AUCD National Office, including a regular message from the president of AUCD, funding opportunities, and employment opportunities. The latest edition is available online. Download the latest edition of UCP’s weekly Capitol Insider and read about what is happening in disability public policy in Washington, DC. Legislative News InBrief is a weekly publication of AUCD, available online HERE. NCD to Release Disability Data Report ( from the NCD Bulletin) - On April 21, NCD’s latest report, Keeping Track: National Disability Status and Program Performance Indicators, will be released at the Westin Arlington Gateway, 801 North Glebe Road, Arlington, VA. This report is the result of a year- long effort by NCD to identify valid federal data and to describe the status of the U. S. population of Americans with disabilities. During the past 30 years, advocates, policymakers, and a variety of public and private organizations have undertaken significant efforts to improve the lives of people with disabilities, culminating in the passage or improvement of legislation such as the Americans with Disabilities Act, various sections of the Rehabilitation Act, the Individuals with Disabilities Education Act, the Ticket to Work and Work Incentives Improvement Act, and others. The report includes 18 indicators determined by stakeholders to measure “ quality of life” using both objective and subjective measures. It also ADA News No. 170 April 30, 2008 lays out a roadmap for the Federal Government to expand the national disability indicator set, as well as a mechanism for installing the set into a key national indicator system. The report is available on the NCD Website. NCD Releases Mental Health Paper ( from the NCD Bulletin) - On March 17, 2008, NCD released Inclusive Livable Communities for People with Psychiatric Disabilities, calling on Congress and the Administration to fully include and integrate people with psychiatric disabilities into America’s livable communities. For the promise of full integration into the community to become a reality, people with disabilities need safe and affordable housing; access to transportation; access to the political process; and the right to enjoy whatever services, programs, and activities are offered to all members of the community by both public and private entities. This paper focuses specifically on expanding the livable communities framework and elements to people with psychiatric disabilities and supports full inclusion that excludes no one. Emergency Management Research and People With Disabilities: A Resource Guide - The National Institute on Disability and Rehabilitation Research is pleased to announce the release of a new online publication: Emergency Management Research and People With Disabilities: A Resource Guide. This resource guide is the culmination of cooperative efforts by NIDRR, the Department of Education, the Research Subcommittee of the Interagency Coordinating Council on Emergency Preparedness and Individuals with Disabilities, and the New Freedom Initiative Subcommittee of the Interagency Committee on Disability Research. The guide provides a listing and description of research projects funded by the federal government and non- federal entities, research recommendations that have come out of conferences on emergency management and disability, and a bibliography of relevant research publications. This report is available on the U. S. Department of Education's Web site. EXPLORING THE BOTTOM LINE: A STUDY OF THE COSTS AND BENEFITS OF WORKERS WITH DISABILITIES - A recent study of 314 employees with and without disabilities conducted by researchers at DePaul University found that employees with disabilities from the healthcare, retail, and hospitality sectors had nearly identical job performance ratings as their non- disabled co- workers. ( Link opens a PDF document.) RESIDENT SAYS MCKEESPORT SLOW TO PROVIDE ACCESS ( by Amy McConnell Schaarsmith, Pittsburgh Post- Gazette, 4/ 10/ 08) - When much of McKeesport gathers at Renziehausen Park for fireworks, Rob Robertson watches the festivities from his wheelchair in a parking lot, high on a hilltop above. The park has a little duck pond where residents fish, and the city often hosts events such as concerts there. But three years after McKeesport settled a lawsuit over insufficient disability access, there still aren't many curb cuts to make the sidewalks passable between Mr. Robertson's home and the park, according to Mr. Robertson. PERMITS FOR THE DISABLED OFTEN ABUSED, ACTIVISTS SAY ( by Matthew I. Pinzur and Yudy Pineiro, Miami Herald, 4/ 11/ 08) - Buying groceries is already a challenge for Fred Shotz, who has terminal cancer and struggles with the physical task of shopping. It is that much harder when he needs to circle the Publix parking lot for 30 minutes waiting for an apparently able- bodied driver to ADA News No. 170 April 30, 2008 give up one of the disabled parking spots. He drives past dozens of empty spaces farther out, but they are not large enough to unload his wheelchair. It is infuriating, he said, but not surprising. “ People will use any permit they can get their hands on,” said Shotz, a disability access consultant in Plantation. “ People use the spouse’s permit, their uncle’s permit – it’s just never- ending.” A Miami- Dade inspector general’s report this week focused on workers abusing permits at Miami International Airport. But the report contained off- hand references to wider public abuse. In a span of about four hours on Thursday, The Miami Herald witnessed roughly 45 cars pulling into the 11 disabled- parking spots near one entrance to Dadeland Mall. Every one had a disabled- parking placard, but only two of the people exiting the cars had visible disabilities – one in a wheelchair, the other using a walker. Most were middle- aged women who parked in the spaces, strolled into the mall and returned with handfuls of shopping bags. Many said the permits had been issued to their disabled husbands or elderly parents – none of whom rode along. Some said they were at the mall to pick them up, but later left alone. None would give their names. Using someone else’s permit is a misdemeanor punishable by a fine up to $ 1,000 and a year in jail, according to the [ Florida] Department of Highway Safety and Motor Vehicles. Others who parked in the Dadeland spaces were elderly couples who walked slowly and told a reporter they suffered from back and knee pain and other ailments such as emphysema, diabetes, varicose veins, spinal cord injuries and rheumatoid arthritis. In many cases, however, activists contend that doctors sign off on permits for patients who do not qualify under state law. Indeed, the airport investigation is now looking into chiropractors who signed the workers’ permit applications. “ I can sign a piece of paper in three seconds or spend 10 minutes getting my patient angry at me,” Shotz said. A wide range of doctors, including chiropractors, osteopathic physicians and advanced nurse practitioners, can sign off. “ It depends on how ethical the doctor is,” said Dr. Fleur Sack, a family physician in Kendall. “ Patients ask and it’s very simple: If I think they can walk, I won't give it.” Temporary permits last no longer than six months, and a doctor must approve renewal. Permanent permits last four years, require no follow- up medical approval and can be renewed online. The state does not have a system to block renewals after the permit- holder dies. “ Someone dies and someone else in the family just starts using it,” said Betty McNally, chairwoman of Miami- Dade’s Commission on Disability Issues. Nor does the state system raise flags if one doctor issues an unusual number of permits. Police can check whether the right person is using it – the permit- holder’s driver’s license number is printed on the placard – but verifying those numbers and looking for expired permits are not necessarily high priorities. Legitimate permit- holders have long complained about fraud. In Miami- Dade County, an unusual policy of letting permit- holders park free in county- owned garages makes illicit permits even more attractive, as the airport investigation this week showed. Inspector General Chris Mazzella said the county waived about $ 2.2 million in parking fees at the airport last year, with another $ 500,000 at the Port of Miami. At the urging of aviation director José Abreu, Mayor Carlos Alvarez may suggest repealing the fee waiver. But even within the network of disability activists, such a change would be controversial. Shotz said the waiver is “ a very bad thing,” increasing demand for black- market permits and making it harder for disabled drivers to find spaces. Another activist, Miami’s Denny Wood, said ending the waivers would simply boost airport revenues on the backs of disabled travelers. “ It’s a small perk in life, but we don’t have access to good jobs; we don't get hired,” Wood said. McNally took a middle ground, saying the rule should be reformed, perhaps waiving fees for a few hours per day. Some consideration is necessary, she said, because many disabled people cannot use low- cost alternatives such as shuttle buses or taxis. At the state level, McNally said a panel will present ideas to Gov. Charlie Crist this summer, including a possible overhaul of the permit system. Until then, Shotz will keep circling the Publix lot, waiting for a space. COMING UP NEXT MONTH - Take some time in May to learn more about Clean Air Month, National Mental Health Month, Arthritis Month, Asthma & Allergy Awareness Month, National Breathe Easy Month, Better Hearing & Speech Month, Better Sleep Month, National Bike Month, Correct Posture Month, National Digestive Diseases Awareness Month, Healthy Vision Month, Hepatitis Awareness Month, National High Blood Pressure Month, Lyme Disease Awareness Month, Melanoma/ Skin Cancer Detection & Prevention Month, National Neurofibromatosis Month, Older Americans Month, National Osteoporosis Awareness & Prevention Month, National Physical Fitness & Sports Medicine Month, Skin Cancer Awareness Month, National Sight- Saving Month, Ultraviolet Awareness Month, Family Wellness Month, National Stroke Awareness Month, National Teen Pregnancy Prevention Month, Tuberous Sclerosis Awareness Month, National Trauma Awareness Month, Huntington’s Disease Awareness Month, National Critical Care Awareness and Recognition Month, National Oncology Nursing Month, Lupus Awareness Month, National Celiac Disease Awareness Month; May 1- 7 is National Physical Education and Sport Week, 4- 10 is Brain Tumor Action Week, Multiple Chemical Sensitivity ( MCS) Awareness Week, Nursing Home Week, North American Occupational Safety & Health Week, National Mental Health Counseling Week, Cover the Uninsured Week, National Hug Holiday, and Children’s Mental Health Week, 6- 12 is National Nurses Week, 9- 17 is National Alcohol & Other Drug- Related Birth Defects Week, 11- 17 is Food Allergy Awareness Week, Nursing Home Week, National Women’s Health Week, and National Hospital Week, 12- 18 is National Suicide Awareness Week and National Stuttering Awareness Week, 18- 24 is National Emergency Medical Services Week, National Neuropathy Week, Tinnitus Awareness Week, Schizophrenia Awareness Week and Medical Transcriptionist Week, 19- 23 is Bike to Work Week, 19- 25 is Buckle Up America! Week, 19- 26 is Recreational Water Illness Prevention Week, 25- 31 is Older Americans’ Mental Health Week and National Running and Fitness Week; May 2nd is National Anxiety Disorders Screening Day, the 4th is Childhood Depression Awareness Day, Green Ribbon Day and High Blood Pressure Sunday, the 5th is National Melanoma Monday, Melanoma/ Skin Cancer Awareness & Prevention Day, the 7th is National Anxiety Disorders Screening Day, Occupational Safety/ Health Professionals Day and National School Nurse Day, the 8th is World Red Cross Red Crescent Day and Childhood Depression Awareness Day, the 10th is Cornelia de Lange Syndrome Awareness Day, the 12th is National Women’s Check- up Day, CFIDS Awareness Day and Fibromyalgia Awareness Day, the 13th is Sex Differences in Health Awareness Day, the 18th is HIV Vaccine Awareness Day and National Employee Health and Fitness Day, the 25th is National Missing Children's Day, the 28th is National Senior Health & Fitness Day, and the 31st is World “ No Tobacco” Day. ADA News No. 170 April 30, 2008 ADA News Disabilities Law, News & Perspective Patrick H. Bair - Editor Number 171May 2008 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 ADA News No. 171 May 21, 2008 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. Recent issues of this newsletter can be found online on the Department website. All past issues of this publication are archived on the DEP internal website. INVESTIGATION APPARENTLY MOTIVATED BY HEALTHCARE CLAIMS - In an action brought under the ADA and ERISA, the U. S. Court of Appeals for the Tenth Circuit ( WY, UT, CO, KS, OK, NM) reversed summary judgment for an employer and remanded a case involving an employee couple whose son was being treated for, and eventually died from brain cancer. The company, PacifiCorp, was apparently very concerned about the rising cost of its health insurance. The company instigated an investigation of the couple’s alleged time and attendance abuses shortly after the couple’s insurance claims rose substantially, caused by a relapse of their son’s cancer. Both were terminated by the company, purportedly because they had falsified their timesheets. The couple sued, claiming they were actually terminated because of the healthcare costs associated with their son’s illness. Their claim was dismissed by the trial court, which found that they had failed to raise a reasonable inference that their son’s disability was a determining factor in PacifiCorp’s decision to terminate them. On review, the Appeals Court disagreed, finding that: 1) the couple had raised the necessary inference of discriminatory motive to establish a prima facie case of association discrimination through evidence that PacifiCorp monitored their son’s health care costs, and that the company was concerned about reducing overall health care costs; 2) there was temporal proximity between the relapse of the son’s cancer and the investigation by the company for time theft; 3) PacifiCorp was not able to present a legitimate business reason since had it treated similarly- situated employees differently; and 4) there were several irregularities in the company’s investigation of the couple for time theft. Trujillo v. PacifiCorp, CA10, No. 06- 8074, 5/ 7/ 08. STORE PATRON HAS STANDING TO CHALLENGE ALL VIOLATIONS - In a recent Title III action under the ADA, the U. S. Court of Appeals for the Ninth Circuit ( WA, MT, ID, OR, CA, NV, AZ, AK, HI, GU, MP) decided that a store patron who has encountered or has personal knowledge of at least one barrier related to his disability when he files a complaint, and who has been deterred from attempting to gain access to the public accommodation because of that barrier, has suffered an injury in fact for the purpose of showing standing. Furthermore, the Court stated, a plaintiff may, in one suit, permissibly challenge all barriers in that public accommodation related to his specific disability and may conduct discovery to determine what if any other barriers affecting his disability existed at time he brought claim. “ It makes no sense to require a disabled plaintiff to challenge, in separate cases, multiple barriers in the same facility, controlled by the same entity, all related to the plaintiff’s specific disability,” wrote Circuit Judge Gould for the majority. “ We do not believe Congress would have intended such a constricted reading of the ADA which could render the benefits it promises largely illusory.” The Court found that the district court had properly granted summary judgment to a 7- Eleven convenience store operator on issues of whether the store’s aisle width and its refusal to allow plaintiff access to its employees- only restroom violated the ADA where the patron failed to introduce evidence that aisle- clearance was insufficient, or that the bathroom was a public accommodation subject to Title III of ADA. The Court, however, directed the lower court to allow the patron to present evidence of other alleged ADA violations found later during his expert’s inspection. Doran v. 7- Eleven, Inc., CA9, No. 05- 56439, 5/ 2/ 08 ( Duffy, C. J., dissenting). INSUFFICIENT EVIDENCE TO SUGGEST DISCRIMINATORY NON- SELECTION - The U. S. ADA News No. 171 May 21, 2008 District Court for the D. C. Circuit recently affirmed summary judgment for the defend |
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