[oregon-l] Fw: NW ADA Center Newsletter
Patricia Kepler
patricia at ilr.org
Mon Jan 30 13:58:10 EST 2012
Subject: FW: January 20 to 27, 2012 News
To: "(dhelwig at lilaoregon.org)" <dhelwig at lilaoregon.org>, Cindy Brown <friendlybrown at gmail.com>, David Barton <dbarton at accessalaska.org>, "Erycka Organ (eryckao at lilaoregon.org)" <eryckao at lilaoregon.org>, Eugene Organ <eorgan at lilaoregon.org>, Marsha Evans <mevans at lilaoregon.org>, Sheri Rita <opportunityaccess at gmail.com>, "B. Fleming" <bflemin at u.washington.edu>, "C. Clark" <cc43 at u.washington.edu>, "Don J. Brandon" <dondiego at u.washington.edu>, Jo Fleming <jof at u.washington.edu>, "John P. Dineen" <dineej at u.washington.edu>, "Miranda N. Levy" <levym at u.washington.edu>, "SARA M. WOODY" <sarabp at u.washington.edu>
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This is also on the Website for the Northwest ADA Center NWADAC which is http://www.dbtacnorthwest.org
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January 20, 2012
ADA in the News
Taxi ruling could set new standard for city services - Thomson Reuters News & Insight
http://newsandinsight.thomsonreuters.com/Legal/News/2012/01_-_January/Taxi_ruling_could_set_new_standard_for_city_services/
When a federal judge last month ruled that New York violated federal laws because it lacked wheelchair-accessible taxis, disabilities advocates celebrated a major victory.
The December opinion by Manhattan federal judge George Daniels may have set a new standard for what kind of municipal services in New York and other cities fall under the Americans with Disabilities Act.
Department of Education Issues ADA Amendments Act Dear Colleague Letter to Provide Guidance Under Amended Legal Standards
http://www.ed.gov/news/press-releases/department-education-issues-ada-amendments-act-dear-colleague-letter-provide-gui
The Department of Education’s (Department) Office for Civil Rights (OCR) today issued a Dear Colleague letter concerning the Americans with Disabilities Act Amendments Act (Amendments Act). The letter and accompanying Frequently Asked Questions document (FAQ) provide additional guidance on the requirements of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) in elementary and secondary schools, given the changes to those laws made by the Amendments Act.
Feds Crack Down On Schools Skirting Disabilities Act
Disability Scoop
http://www.disabilityscoop.com/2012/01/20/feds-crack-skirting/14811/
Congress awarded students with disabilities extra protections in recent years. Now, the U.S. Department of Education is stepping up its efforts to ensure that schools are following the new rules.
In a letter sent this week to school districts and state education leaders, officials at the Education Department’s Office of Civil Rights took pains to spell out the obligations schools have under the Americans with Disabilities Act Amendments Act.
Lawmaker Wants to Ban State Workers from Wearing Perfume
KSEE
http://shine.yahoo.com/beauty/perfume-ban-hampshire-state-explains-why-193100759.html
Many women love wearing perfume, but have you ever gotten a headache from someone who has sprayed on way too much of a scent you don't like?
Back in 2008, Susan McBride, sued Detroit under the Americans with Disabilities Act, claiming a coworker's fragrance made it hard for her to breathe and do her job. She was eventually awarded $100,000, and the city warned workers to avoid using scented products like perfume, cologne, deodorant, lotion, and aftershave. Now New Hampshire is looking to do the same.
Change for the better?
Laurel Leader Call
http://leadercall.com/local/x1405465971/Change-for-the-better
The U.S. Justice Department has traveled across the state to talk to families who have individuals with mental illness and developmental disabilities residing in state-operated institutions.
National, State & Local News
Work gets under way at Tourist Center to make it ADA compliant
http://www.threeriverspublishing.com/TRP/index.php?option=com_content&view=article&id=9842:work-gets-under-way-at-tourist-center-to-make-it-ada-compliant&catid=66&Itemid=264
The St. James Tourist Information Center (TIC) is currently getting a remodel, thanks to contractor John Douglas and construction crews. Due to the ongoing work, the TIC will be using winter hours to work around construction efforts. The project, once complete, will see the TIC renovated to Americans with Disabilities Act (ADA) codes.
Builders design homes easy for disabled to navigate
The Journal News | LoHud.com
http://www.lohud.com/article/20120120/NEWS02/301200049/Builders-design-homes-easy-disabled-navigate
Contractor Martin Watters earns his living renovating upscale Manhattan home renovations, yet people kept suggesting he focus on the disabled.
Recent blogs, editorials and opinions
Court Ruling Broadening Americans with Disabilities Act Will Harm Taxicab Safety and Cost Hundreds of Millions
OpenMarket.org
http://www.openmarket.org/2012/01/19/court-ruling-broadening-americans-with-disabilities-act-will-harm-taxicab-safety-and-cost-hundreds-of-millions/
A federal judge last month barred New York City’s “Taxi and Limousine Commission from issuing permits for taxicabs unless they’re accessible to people who use wheelchairs,” citing the Americans with Disabilities Act (ADA). The judge effectively rewrote the ADA to cover taxi cabs, even though “the ADA specifically exempts automobile-type vehicles, including most taxicabs, from the requirement to be wheelchair accessible.”
A disability policy for the twenty-first century
The Hill
http://thehill.com/blogs/congress-blog/labor/205167-david-stapleton-and-david-mann-mathematica-policy-research
Of the roughly 17.5 million working-age people in the United States living with a disability, nearly 70 percent receive disability benefits. A recent study revealed that 12 percent of all federal spending goes to supporting this population—$357 billion in 2008. Just 33 percent of working-age people with disabilities are employed, compared to 73 percent of those with no disability. This costly system is failing both people with disabilities and taxpayers.
January 23, 2012
ADA Cases
SMITH v. LEE COUNTY DISTRICT CLERK'S OFFICE - Leagle.com
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020120120101.xml&docbase=CSLWAR3-2007-CURR
Smith is WARNED that any future frivolous pleadings filed by him in this court or in any court subject
to the jurisdiction of this court will subject him to sanctions. Smith should review any pending matters to ensure that they are not frivolous.
Lower court properly applied burden-shifting framework to FMLA claims and found absence of pretext; employee failed to demonstrate she was disabled under pre-ADAAA standards
http://www.ca6.uscourts.gov/opinions.pdf/12a0014p-06.pdf
After concluding that the district court properly applied the McDonnell Douglas framework to an employee’s FMLA interference and retaliation claims, the Sixth Circuit affirmed summary judgment in the employer’s favor on both those claims (Donald v Sybra, Incorporated, dba Arby’s, 6thCir, January 17, 2012, Cole, R). Moreover, under the pre-amendment ADA, the employee could not demonstrate that she was disabled because she was not regarded as having an impairment that limited a major life activity. Therefore, the lower court properly dismissed her ADA and state law disability claims, the appeals court ruled.
Under ADAAA’s broader definition of disability, employee with sleep apnea stated plausible claim for relief
http://law.justia.com/cases/federal/district-courts/oklahoma/okwdce/5:2011cv00963/81510/19
Noting that the ADAAA defines major life activity to include sleeping, a federal district court in Oklahoma ruled that an employee with sleep apnea pled a plausible claim of disability discrimination under the ADA (Johnson v Farmer’s Insurance Exchange aka Farmers Group, Inc, WDOkla, January 12, 2012, Cauthron, R). While the court acknowledged that the employee would still have to establish facts sufficient to prove that sleep apnea was a disability in order to survive summary judgment, her allegations were sufficient to survive the employer’s motion to dismiss.
Workers don't get two chances to prove they're disabled
Business Management Daily
A federal judge has ruled that an employee who lost one ADA discrimination case because the court found she wasn’t disabled can’t sue again, claiming that she is disabled.
Recent case: Julie Delgado-O’Neil sued the city of Minneapolis, where she works in the City Attorney’s Office. Years earlier, she had alleged that the city had refused to accommodate her hearing impairment, which she said was a disability. Then she sued again, alleging she was disabled.
The judge said she could not re-litigate her disability status because the previous court had already ruled that she wasn’t disabled. (Delgado-O’Neil v. City of Minneapolis, No. 10-4021, DC MN, 2011)
Final note: When settling a lawsuit, be sure to discuss whether to retain the employee or offer additional compensation for her to leave and promise never to return.
Known disability, safety concern? Testing OK
Business Management Daily
Disabled employees may believe that their employers can never insist that they take a test related to the disability. That’s not true.
For example, if an employee has a known disability and is observed making safety-related mistakes, it’s perfectly reasonable to demand an assessment of whether the employee is capable of performing the job.
Recent case: Ross Margherita worked as a FedEx freight handler at Kennedy Airport, where he loaded and unloaded planes. Margherita has a hearing impairment and a speech impediment. Neither disqualified him from doing his job.
But then a supervisor noticed Margherita driving the wrong way and apparently ignoring hand signals and verbal warnings. That prompted FedEx to demand a hearing test and a communications test under field conditions. Margherita had to respond to a series of commands at various distances on a loading ramp. The results were inconclusive.
Following a second test, Margherita went on leave for stress and anxiety. When he returned, he was placed in a position that didn’t require him to use hand or voice commands. He received a raise and his benefits did not change.
He sued anyway, alleging that the tests were illegal under the ADA.
The court disagreed. It said that an employer that knows about a disability and notices safety issues can test the employee. It’s legal because the testing is designed to assess the ability to carry out one’s job, not determine if the employee is disabled. That makes it employment-related and consistent with business necessity. (Margherita v. FedEx, et al., No. 07-CV-4826, ED NY, 2011)
Final note: Margherita didn’t lose anything with his transfer to another position. That made it impossible for him to argue that he had been punished for being disabled.
Disabled worker? It may pay to offer commuting accommodations
Business Management Daily
http://www.businessmanagementdaily.com/29063/disabled-worker-it-may-pay-to-offer-commuting-accommodations
While many district courts have found that commuting to work falls outside of the realm of an employer’s obligation to provide reasonable accommodations for disabled employees, some courts have opted to expand upon the ADA by ruling otherwise.
Employee lied on post-offer medical form? Feel free to terminate for falsification
Business Management Daily
Employers know they can’t ask applicants about medical problems or force them to reveal disabilities before making a job offer. But that doesn’t mean you can’t require a job-related medical examination after you’ve made an offer but before the employee starts.
That examination can include filling out a medical information sheet. And if prospective employees lie when filling out the form, you can use that as a reason to terminate if you warned them in advance that inaccurate or dishonest answers could cost them their jobs.
Recent case: Theresa Mhanna applied for a job with AK Steel and signed an application that stated, “I agree that any false or misleading statement in this application for employment or any additional forms signed by me in connection with my employment shall be sufficient cause for refusal or termination of employment.”
Mhanna received a conditional job offer and was required to complete a post-offer, pre-employment medical questionnaire. The form asked whether she had seen a doctor for other-than-routine physical examinations. She answered “no.”
The form also asked about various ailments, including multiple sclerosis (MS) and back pain. She denied having either. She also denied taking any prescription drugs in the past five years.
She then signed the form under a statement asserting that her answers were accurate and that she understood that falsifying the form could mean termination.
After working for AK Steel for more than a year, she took two weeks off and returned with a 40-hour-per-week work restriction. When she then underwent her annual OSHA medical exam, she told the doctor that she wanted to maintain the restricted hours because she had, in fact, been diagnosed with MS several years earlier. She also revealed that she had undergone two MRIs and been prescribed medication, including a Myobloc injection, all within the past few years.
The doctor reported the information to HR, which decided to terminate Mhanna for falsifying her medical forms.
She sued, alleging that she had been fired for taking two weeks off under the FMLA.
The company argued it was simply carrying out its promise to terminate employees who lied on their applications or any other company forms. The court agreed the termination was legitimate and dismissed the case. (Mhanna v. AK Steel Corporation, No. 10-CV-322, SD OH, 2011)
Final note: Remember, you can’t ask an employee about disabilities, prescription use or otherwise try to figure out whether an applicant is disabled.
However, once you make a job offer, you can ask for information that is reasonably related to performing the job safely and effectively.
If the employee does reveal a medical problem or other disability, make sure you consider possible reasonable accommodations before you rescind the offer.
You can, if you want, inform employees that they may voluntarily reveal a disability during the initial application process.
ADA in the News
United Insurance Company of America Pays $37,500 To Resolve EEOC Disability Discrimination Lawsuit
http://eeoc.gov/eeoc/newsroom/release/1-23-12.cfm
United Insurance Company of America will pay $37,500 and furnish other relief to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
Other Legislation
Stearns bill would eliminate low wage for disabled
Business Management Daily
Rep. Cliff Stearns, who represents Florida’s 6th Congressional District, has proposed legislation to amend the Fair Labor Standards Act, abolishing a provision that lets employers pay less than the minimum wage to some disabled workers.
“Although the disabled have made significant progress in achieving the American dream, they still face unfairness in the workplace under a provision that allows employers to pay workers with disabilities less than the federal minimum wage,” said Stearns, who titled his bill the Fair Wages for Workers with Disabilities Act.
Supporters of the lower wage maintain it allows employers to hire more disabled workers in jobs where they don’t have to compete with nondisabled workers. Critics maintain it simply allows employers to exploit disabled workers.
National, State and Local News
More People with Disabilities Find Jobs
LifeHealthPro –
http://www.lifehealthpro.com/2012/01/20/more-people-with-disabilities-find-jobs
The job market may be warming up a little for people with disabilities.
The Bureau of Labor Statistics is reporting that the unemployment rate for the 27 million U.S. residents ages 16 and older fell to 13.5% in December 2011, down from 14.3% in December 2010.
For U.S. adults with no disabilities, the unemployment rate fell to 8.1%, from 8.9%.
What Should I Do About Jacob? - Inside Higher Ed
http://www.insidehighered.com/views/2012/01/23/essay-experience-teaching-student-intellectual-disabilities
The Americans With Disabilities Act and its amendments have allowed men and women with physical, psychological, and emotional impairments to participate in higher education in a way that previous generations could not. At the same time that this legislation has transformed the lives of millions of students, it has also transformed higher education: Roughly 11 percent of first-year college students identify as having a disability, a figure that will likely increase in the coming years, with the greatest growth expected in what is often referred to as "invisible disabilities," a category that includes learning disorders, cognitive impairments, ADD/ADHD, and other conditions that are not quite so easily diagnosed or straightforward in terms of the accommodations required by the students. Campuses that receive public funds must maintain a Section 504 compliance office, which is charged with meeting the needs of those who have documented disabilities and require support services. Instructors are required to make “reasonable accommodations” for those who qualify for them.
It goes without saying that the developments of the last two decades have affected students, instructors, individual campuses and the institution of higher education. And so long as it goes without saying, we are kept from addressing the benefits and challenges — both practical and philosophical — these create.
North Ogden reluctantly complies with ADA, FHA rules - StandardNet
http://www.standard.net/stories/2012/01/22/north-ogden-reluctantly-complies-ada-fha-rules
The city council has approved ordinances that put the city in compliance with the Americans with Disabilities Act and the Fair Housing Act, but not with a smile.
January 25, 2011
ADA Cases
Company's "100% healed" policy does not create per se disability discrimination
Lexology
In a case that adds to a split among federal appellate courts, the 7th U.S. Circuit Court of Appeals has held that a company’s insistence on an employee being “100% healed” after a medical leave does not necessarily support the employee’s legal claim under the Americans with Disabilities Act (ADA). Powers v. USF Holland, Inc., 7th Cir., No. 10-2363, December 15, 2011.
Keith Powers, a truck driver for USF Holland, Inc., injured his back in a work-related incident. After returning from a workers’ compensation leave, Powers returned to his job as a long-haul driver, and worked successfully in that position for two years. Because his wife was expecting a child, Powers asked to be transferred to a city driver route, which would keep him closer to home. However, unlike the long-haul job, the city route included frequent entering and exiting of the truck cab, and loadings and unloadings of the truck with a forklift. After the switch to city driver, Powers again began to have problems with his back and asked to transfer back to long hauls. That request was denied on the basis that the collective bargaining agreement did not allow for more than one job transfer within a one-year period.
Powers took a medical leave, after which he requested to return to work with certain restrictions that would limit him to long-haul driving, including limited dock work and loading and unloading. USF informed him that he could not return to work until he submitted a full medical release containing no work restrictions.
Powers filed a lawsuit claiming that by enforcing its “100% healed” policy, USF had discriminated against him because of his disability. The district court dismissed Powers’ ADA claims, holding that because Powers was capable of long-haul driving, he was not substantially limited in the major life activity of working. Therefore, Powers was not actually disabled within the meaning of the ADA, which requires a “substantial limitation in a major life activity,” and the 100% healed rule was not impermissibly applied to him.
On appeal to the Seventh Circuit, Powers argued that he was disabled because USF regarded him as disabled, which also would bring him under the protections of the ADA. Under the ADA’s “regarded as” prong, an employer must believe (rightly or wrongly) that the employee has a medical impairment that substantially limits him from some major life activity. In addition to agreeing with the lower court’s assessment that Powers’ impairment did not rise to the level of a substantial limitation under the ADA – that is, Powers was not actually disabled - the Seventh Circuit held that because USF did not view Powers as unable to work for other employers, USF did not regard him as substantially limited in the major life activity of working, and that therefore, application of the company’s “100% healed” policy to Powers did not violate the ADA.
The U.S. Supreme Court, in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), held that “an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment – such as one’s height, build, or singing voice – 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.” (In Sutton, two visually impaired pilots who were not chosen for positions as “global airline pilots” were not disabled, because they were qualified and able to hold numerous other positions within the aviation industry.) Therefore, a particular impairment could disqualify an individual for a specific job, so long as that impairment did not substantially limit the individual from working for other employers in a class of jobs or from a broad range of jobs.
While this holding seems to support the application of a “100% healed” policy, employers who deal with return-to-work requests may also have to review state workers compensation laws, Family and Medical Leave Act issues, and requests for accommodations, and should not assume that the application of a “100% healed” policy will avoid all problems associated with medical impairments.
FUCHS v. UNIVERSITY OF ARIZONA
Leagle.com
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020120124192.xml&docbase=CSLWAR3-2007-CURR
ADA in the News
Oregonians with disabilities file class action suit against the governor, state officials
OregonLive.com
http://www.oregonlive.com/politics/index.ssf/2012/01/oregonians_with_disabilities_f.html
The United Cerebral Palsy Association of Oregon and Southwest Washington along with eight individuals representing thousands of Oregonians with intellectual or physical disabilities filed a class action lawsuit Wednesday against Gov. John Kitzhaber and top managers at the Department of Human Services.
Advocates hope the lawsuit, filed in U.S. District Court in Portland, will set a national precedent and end the practice of having people with disabilities to spend their days in "sheltered workshops," where they complete repetitive or rote tasks for a sub-minimum wage and without the opportunity for training or advancement.
UC Disabled Students Program Sued for Not Hiring Disabled Students
The Bottom Line
http://thebottomline.as.ucsb.edu/2012/01/uc-disabled-students-program-sued-for-not-hiring-disabled-students
Alexander Stern, a University of California Santa Barbara fourth-year global studies major, is suing the University of California for a policy through which disabled individuals are not allowed to apply or be accepted for jobs via the Disabled Students Program. The lawsuit, Alexander Stern v. Regents of the University of California, is being pursued by Stern after discovering his disability made it impossible to get a job through the program.
HIV-infected man fights to become Atlanta officer - Fox News
http://www.foxnews.com/us/2012/01/24/hiv-infected-man-fights-to-become-atlanta-officer/
A former investigator with the city of Los Angeles claims Atlanta police rejected his job application solely because he has HIV, a decision he said breaks the law and perpetuates stereotypes about people with the virus.
Atlanta police argue hiring the man poses a threat to the health and safety of the public, setting up a legal fight that is being followed closely by gay rights groups and police agencies.
What constitutes a disability under the Americans with Disabilities Act (ADA)? - Lexology
http://www.lexology.com/library/detail.aspx?g=179115cb-3b93-4442-8b90-88f7b9866062
The Americans with Disabilities Act (ADA) defines “disability” to mean: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; (3) or being regarded as having such an impairment. “Major life activities” include activities like walking, lifting, and communicating as well as major bodily functions like cell growth and neurological functioning. See 29 C.F.R. § 1630.2(g–i).
To determine if an employee’s impairment “substantially limits” a major life activity and qualifies as a disability for ADA purposes, the Equal Employment Opportunity Commission (EEOC) provides the following nine “rules of construction” as guidance to employers:
1.The phrase “substantially limits” shall be construed broadly and not as a demanding standard.
2.To qualify as disabled, an employee’s ability to perform a major life activity must be “substantially limited” as compared to “most people in the general population.”
3.The determination of whether an employee is “substantially limited” should not demand extensive analysis.
4.The determination of whether an employee is “substantially limited” must be individualized.
5.The determination of whether an employee is “substantially limited” usually will not require scientific, medical, or statistical analysis.
6.The determination of whether an employee is “substantially limited” must be made without regard to the ameliorative effects of mitigating measures (except ordinary eyeglasses or contact lenses).
7.For impairments that are episodic or in remission, the determination of whether an employee is “substantially limited” must be based on the impairment “when active.”
8.Only one “major life activity” needs to be “substantially limited” for an employee to be disabled.
9.The effects of an impairment may be “substantially limiting” even if the impairment lasts or is expected to last less than six months.
See 29 C.F.R. § 1630.2(j)(1).
Takeaway for Employers: Determining whether someone is “disabled” under the ADA requires an individualized assessment, but the standard should be interpreted broadly. Certain impairments will qualify as a disability in virtually all cases.
Change not easy - Laurel Leader Call
http://leadercall.com/local/x1669700719/Change-not-easy
Mississippi Public Mental Health System officials established a strategic plan to improve the way institutions and facilities care for individuals with mental illness, intellectual and/or developmental disabilities long before the U.S. Department of Justice launched its investigation of the system.
Glencoe leaders consider liability, ADA issues in street-ends debate - Glencoe News
http://glencoe.suntimes.com/news/10194321-418/glencoe-leaders-consider-liability-ada-issues-in-street-ends-debate.html
As Glencoe’s Street Ends Task Force sorted through the issues of how to handle mini-beach access, it seemed possible that a solution might be reached that pleases lawyers and insurance agents more than anybody else.
Glencoe village attorney Vic Filippini’s description, at a Jan. 19 meeting, of possible risks of liability and of coming a cropper of the Americans with Disabilities Act, led him to suggest a way to get down the bluff from Dell Place to the narrow Dell Place beach that was more a compromise than a favorite of anybody talking that night.
Using Apps for Disability Accommodation
HR.BLR.com
http://hr.blr.com/HR-news/Discrimination/Disabilities-ADA/nt2-Using-Apps-for-Disability-Accommodation/
Today almost everyone has a mobile device. They can update a user on current weather and sports statistics and link a person to every social network available. These devices enable a user to connect to the Internet faster than most computers and provide many channels of communication to co-workers, friends, and loved ones. These mobile devices do not stop there; with the thousands of applications (“apps”) available online, a user can now turn even a smart phone into a viable tool as an accommodation either in the workplace or for personal use.
National, State and Local News
Mini horses for disabled students
Omaha World-Herald -
http://www.omaha.com/article/20120124/NEWS01/701249891/0
Most people are familiar with the devoted and dependable guide dog that helps a blind person navigate around obstacles.
Another animal has joined that esteemed beast as special friend of the disabled: the miniature horse.
Both animals would be welcome in the Millard Public Schools, subject to certain conditions, under a proposed new policy.
Claims Of Workplace Disability Discrimination At All-Time High
Disability Scoop
http://www.disabilityscoop.com/2012/01/24/claims-workplace-discrimination/14838/
For the sixth straight year, charges of job bias based on disability increased in 2011, according to new data from the U.S. Equal Employment Opportunity Commission.
Class to show how disability can become ability
The Commercial Dispatch
http://www.cdispatch.com/news/article.asp?aid=15284
January 25, 2012
ADA Cases
Company's "100% healed" policy does not create per se disability discrimination
Lexology
In a case that adds to a split among federal appellate courts, the 7th U.S. Circuit Court of Appeals has held that a company’s insistence on an employee being “100% healed” after a medical leave does not necessarily support the employee’s legal claim under the Americans with Disabilities Act (ADA). Powers v. USF Holland, Inc., 7th Cir., No. 10-2363, December 15, 2011.
Keith Powers, a truck driver for USF Holland, Inc., injured his back in a work-related incident. After returning from a workers’ compensation leave, Powers returned to his job as a long-haul driver, and worked successfully in that position for two years. Because his wife was expecting a child, Powers asked to be transferred to a city driver route, which would keep him closer to home. However, unlike the long-haul job, the city route included frequent entering and exiting of the truck cab, and loadings and unloadings of the truck with a forklift. After the switch to city driver, Powers again began to have problems with his back and asked to transfer back to long hauls. That request was denied on the basis that the collective bargaining agreement did not allow for more than one job transfer within a one-year period.
Powers took a medical leave, after which he requested to return to work with certain restrictions that would limit him to long-haul driving, including limited dock work and loading and unloading. USF informed him that he could not return to work until he submitted a full medical release containing no work restrictions.
Powers filed a lawsuit claiming that by enforcing its “100% healed” policy, USF had discriminated against him because of his disability. The district court dismissed Powers’ ADA claims, holding that because Powers was capable of long-haul driving, he was not substantially limited in the major life activity of working. Therefore, Powers was not actually disabled within the meaning of the ADA, which requires a “substantial limitation in a major life activity,” and the 100% healed rule was not impermissibly applied to him.
On appeal to the Seventh Circuit, Powers argued that he was disabled because USF regarded him as disabled, which also would bring him under the protections of the ADA. Under the ADA’s “regarded as” prong, an employer must believe (rightly or wrongly) that the employee has a medical impairment that substantially limits him from some major life activity. In addition to agreeing with the lower court’s assessment that Powers’ impairment did not rise to the level of a substantial limitation under the ADA – that is, Powers was not actually disabled - the Seventh Circuit held that because USF did not view Powers as unable to work for other employers, USF did not regard him as substantially limited in the major life activity of working, and that therefore, application of the company’s “100% healed” policy to Powers did not violate the ADA.
The U.S. Supreme Court, in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), held that “an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment – such as one’s height, build, or singing voice – 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.” (In Sutton, two visually impaired pilots who were not chosen for positions as “global airline pilots” were not disabled, because they were qualified and able to hold numerous other positions within the aviation industry.) Therefore, a particular impairment could disqualify an individual for a specific job, so long as that impairment did not substantially limit the individual from working for other employers in a class of jobs or from a broad range of jobs.
While this holding seems to support the application of a “100% healed” policy, employers who deal with return-to-work requests may also have to review state workers compensation laws, Family and Medical Leave Act issues, and requests for accommodations, and should not assume that the application of a “100% healed” policy will avoid all problems associated with medical impairments.
FUCHS v. UNIVERSITY OF ARIZONA
Leagle.com
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020120124192.xml&docbase=CSLWAR3-2007-CURR
ADA in the News
Oregonians with disabilities file class action suit against the governor, state officials
OregonLive.com
http://www.oregonlive.com/politics/index.ssf/2012/01/oregonians_with_disabilities_f.html
The United Cerebral Palsy Association of Oregon and Southwest Washington along with eight individuals representing thousands of Oregonians with intellectual or physical disabilities filed a class action lawsuit Wednesday against Gov. John Kitzhaber and top managers at the Department of Human Services.
Advocates hope the lawsuit, filed in U.S. District Court in Portland, will set a national precedent and end the practice of having people with disabilities to spend their days in "sheltered workshops," where they complete repetitive or rote tasks for a sub-minimum wage and without the opportunity for training or advancement.
UC Disabled Students Program Sued for Not Hiring Disabled Students
The Bottom Line
http://thebottomline.as.ucsb.edu/2012/01/uc-disabled-students-program-sued-for-not-hiring-disabled-students
Alexander Stern, a University of California Santa Barbara fourth-year global studies major, is suing the University of California for a policy through which disabled individuals are not allowed to apply or be accepted for jobs via the Disabled Students Program. The lawsuit, Alexander Stern v. Regents of the University of California, is being pursued by Stern after discovering his disability made it impossible to get a job through the program.
HIV-infected man fights to become Atlanta officer - Fox News
http://www.foxnews.com/us/2012/01/24/hiv-infected-man-fights-to-become-atlanta-officer/
A former investigator with the city of Los Angeles claims Atlanta police rejected his job application solely because he has HIV, a decision he said breaks the law and perpetuates stereotypes about people with the virus.
Atlanta police argue hiring the man poses a threat to the health and safety of the public, setting up a legal fight that is being followed closely by gay rights groups and police agencies.
What constitutes a disability under the Americans with Disabilities Act (ADA)? - Lexology
http://www.lexology.com/library/detail.aspx?g=179115cb-3b93-4442-8b90-88f7b9866062
The Americans with Disabilities Act (ADA) defines “disability” to mean: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; (3) or being regarded as having such an impairment. “Major life activities” include activities like walking, lifting, and communicating as well as major bodily functions like cell growth and neurological functioning. See 29 C.F.R. § 1630.2(g–i).
To determine if an employee’s impairment “substantially limits” a major life activity and qualifies as a disability for ADA purposes, the Equal Employment Opportunity Commission (EEOC) provides the following nine “rules of construction” as guidance to employers:
1.The phrase “substantially limits” shall be construed broadly and not as a demanding standard.
2.To qualify as disabled, an employee’s ability to perform a major life activity must be “substantially limited” as compared to “most people in the general population.”
3.The determination of whether an employee is “substantially limited” should not demand extensive analysis.
4.The determination of whether an employee is “substantially limited” must be individualized.
5.The determination of whether an employee is “substantially limited” usually will not require scientific, medical, or statistical analysis.
6.The determination of whether an employee is “substantially limited” must be made without regard to the ameliorative effects of mitigating measures (except ordinary eyeglasses or contact lenses).
7.For impairments that are episodic or in remission, the determination of whether an employee is “substantially limited” must be based on the impairment “when active.”
8.Only one “major life activity” needs to be “substantially limited” for an employee to be disabled.
9.The effects of an impairment may be “substantially limiting” even if the impairment lasts or is expected to last less than six months.
See 29 C.F.R. § 1630.2(j)(1).
Takeaway for Employers: Determining whether someone is “disabled” under the ADA requires an individualized assessment, but the standard should be interpreted broadly. Certain impairments will qualify as a disability in virtually all cases.
Change not easy - Laurel Leader Call
http://leadercall.com/local/x1669700719/Change-not-easy
Mississippi Public Mental Health System officials established a strategic plan to improve the way institutions and facilities care for individuals with mental illness, intellectual and/or developmental disabilities long before the U.S. Department of Justice launched its investigation of the system.
Glencoe leaders consider liability, ADA issues in street-ends debate - Glencoe News
http://glencoe.suntimes.com/news/10194321-418/glencoe-leaders-consider-liability-ada-issues-in-street-ends-debate.html
As Glencoe’s Street Ends Task Force sorted through the issues of how to handle mini-beach access, it seemed possible that a solution might be reached that pleases lawyers and insurance agents more than anybody else.
Glencoe village attorney Vic Filippini’s description, at a Jan. 19 meeting, of possible risks of liability and of coming a cropper of the Americans with Disabilities Act, led him to suggest a way to get down the bluff from Dell Place to the narrow Dell Place beach that was more a compromise than a favorite of anybody talking that night.
Using Apps for Disability Accommodation
HR.BLR.com
http://hr.blr.com/HR-news/Discrimination/Disabilities-ADA/nt2-Using-Apps-for-Disability-Accommodation/
Today almost everyone has a mobile device. They can update a user on current weather and sports statistics and link a person to every social network available. These devices enable a user to connect to the Internet faster than most computers and provide many channels of communication to co-workers, friends, and loved ones. These mobile devices do not stop there; with the thousands of applications (“apps”) available online, a user can now turn even a smart phone into a viable tool as an accommodation either in the workplace or for personal use.
National, State and Local News
Mini horses for disabled students
Omaha World-Herald -
http://www.omaha.com/article/20120124/NEWS01/701249891/0
Most people are familiar with the devoted and dependable guide dog that helps a blind person navigate around obstacles.
Another animal has joined that esteemed beast as special friend of the disabled: the miniature horse.
Both animals would be welcome in the Millard Public Schools, subject to certain conditions, under a proposed new policy.
Claims Of Workplace Disability Discrimination At All-Time High
Disability Scoop
http://www.disabilityscoop.com/2012/01/24/claims-workplace-discrimination/14838/
For the sixth straight year, charges of job bias based on disability increased in 2011, according to new data from the U.S. Equal Employment Opportunity Commission.
Class to show how disability can become ability
The Commercial Dispatch
http://www.cdispatch.com/news/article.asp?aid=15284
January 27, 2012
ADA Cases
"100% healed" policy is not a per se ADA violation
Lexology
POWERS v. USF HOLLAND, INC. (December 15, 2011)
USF Holland is a large regional trucking company. Drivers at its South Bend, Indiana, terminal are classified as either city or road drivers. City drivers have local routes and frequently assist in dock work, i.e., loading and unloading. Road drivers, on the other hand, drive much longer distances and engage in much less dock work. Keith Powers was a Holland road driver in 2004 when his wife became pregnant. He asked Holland to switch him to city driver status in order to be home more often. Holland granted the request. Within a month, Powers regretted the move. He started experiencing discomfort and lack of mobility as a result of the additional dock work he was required to do is a city driver. Holland rejected his request to return to his prior assignment, citing a restriction in the collective bargaining agreement. Powers' condition worsened and he went on unpaid medical leave in August 2004. In December 2005, he asked to return to work. His physician imposed medical restrictions, including "limited hours of dock work" and "road driver work only." Two Holland supervisors told Powers that he could not return to work until he could work without restrictions. A Human Resources manager told Powers said that she needed clarification regarding the restrictions and also asked him to have his physician fill out a "Request for Accommodation" form. Powers never completed the form. Instead, he brought suit against Holland under the ada.gov/" target="_blank">Americans with Disabilities Act. He alleged that Holland violated the ADA by enforcing a "100% healed policy" and thatt Holland discriminated against him and retaliated against him. Judge Van Bokkelen (N.D. Ind.) granted summary judgment to Holland. Powers appeals.
In their opinion, Seventh Circuit Judges Cudahy, Posner, and Manion affirmed. The Court noted that, although Powers brought several distinct claims, each claim required proof that Powers was disabled under the ADA. To be ADA-disabled, a person must have an impairment that "substantially limits one or more of the major life activities," or must have a record of such an impairment, or must be regarded as having such an impairment. The only major life activity at issue in the appeal was working. Powers made claims under both the “having an impairment” and “regarded as having an impairment” prongs. The Court first addressed whether Powers had an impairment. In order to meet that condition, Powers had to show that he was significantly restricted in his ability to work compared to others. The Court concluded that the evidence did not support that conclusion. Powers line of work is truck driving. The only restrictions noted by his physician related to the dock work associated with the truck driving. In fact, Powers testified that he was physically capable of driving. The fact that he is unable to perform a job where the driving is accompanied by significant dock work does not make him significantly restricted in truck driving. The Court turned to the "regarded as" prong. Under that prong, a person can be ADA-disabled if his employer believes that he has a substantial impairment in a major life activity. The Court found no such evidence in the record. In so concluding, the Court rejected Powers' contention that the company's "100% healed policy" supported that position. That policy does not violate the ADA (at least the pre-2008 ADA that applies in this case) unless the person is actually disabled.
ADA in the News
Settlement Agreement: U.S. v. Virginia
On January 26, 2012, the Division filed in District Court a Complaint and a simultaneous Settlement Agreement resolving its ADA Olmstead investigation into whether persons with intellectual and developmental disabilities in Virginia are being served in the most integrated settings appropriate to their needs. Read More
Settlement Agreement (Word) | (PDF)
Settlement Agreement Fact Sheet (Word) | (PDF)
Complaint (Word) | (PDF)
Virginia agrees to settlement on services for developmentally disabled
CNN
http://www.cnn.com/2012/01/26/us/virginia-developmental-disabilities/index.html
In a closely watched case with implications for other states, Virginia reached a broad settlement with the Justice Department Thursday on protecting the legal rights of people with developmental disabilities, both physical and intellectual. The agreement also will resolve violations of the Americans with Disabilities Act.
CRA/LA Being Sued by 3 Advocacy Groups For Disabled
Patch.com
http://northhollywood.patch.com/articles/cra-la-being-sued-by-3-disability-advocacy-groups
Alleging discrimination against people with disabilities, three advocacy groups for the disabled are suing the Community Redevelopment Agency of Los Angeles and the city of L.A., according to the Daily News.
Lawsuit against Adams County sheriff over alleged ADA violations gains three more plaintiffs
http://www.denverpost.com/breakingnews/ci_19835476?source=rss
Three more plaintiffs — including a deaf man — have joined a lawsuit filed in U.S. District Court against Adams County Sheriff Doug Darr over alleged violations of the Americans With Disabilities Act.
Suit: Sheltered Workshops Violate Rights of People with Disabilities - The Nonprofit Quarterly
http://www.nonprofitquarterly.org/index.php?option=com_content&view=article&id=19426:suit-sheltered-workshops-violate-rights-of-people-with-disabilities&catid=155:nonprofit-newswire&Itemid=986
In a first-of-its-kind class-action case filed in federal court, the Oregon chapter of the Cerebral Palsy Association and eight individuals with intellectual and developmental disabilities claimed that sheltered workshops violate protections against discrimination under the federal Americans with Disabilities Act and the Rehabilitation Act. The suit charges that the workshops unnecessarily segregate the plaintiffs in work environments where they are paid less than minimum wage. The suit also claims that the workshops perpetuate a stereotype about the inability of people with disabilities to function in mainstream work environments.
Grand Junction woman files complaint with ADA - KKCO-TV
http://www.nbc11news.com/localnews/headlines/Grand_Junction_woman_files_complaint_with_ADA_Cites_discrimination_against_service_dog_138180484.html
One Grand Junction woman says she was asked to leave a store because she brought her service dog inside
Group Looks for Suggestions to Help Disabled - Patch.com
http://dunedin.patch.com/articles/americans-with-disabilities-group-looks-for-suggestions
A citizen Americans with Disabilities Act group is hosting an informal talk on Saturday about how better to serve Dunedin's disabled. Free dessert and interpretive services for the hearing impaired are included.
Slow Response to ADA Deadline
Pool & Spa News
http://www.poolspanews.com/2012/021/021n_ada.html
With only weeks to go before the compliance deadline, inquiries about the Americans with Disabilities Act are just starting to trickle in from aquatics facilities, industry professionals report.
Cascade restaurant worker charged with denying accomodations to disabled man with guide dog
MLive.com
A 20-year-old restaurant worker was charged with refusing accommodations to a person with disabilities who was accompanied by a guide dog.
The charge stems from a November incident at Don Julio’s restaurant, 5039 28th St. SE, in which the woman allegedly refused to seat a man with a guide dog, according to Kent County Sheriff's officials.
Nataly Bucio's mother, who declined to give her name, confirmed her daughter is charged with the offense.
Bucio's arraignment is set for Feb. 8.
"Because of all of this, she’s under a lot of stress," Bucio's mother said. "She’d rather not talk about anything right now. There’s going to be a lawyer handling all of this, it got out of hand when it wasn’t even her fault."
The charge is a misdemeanor. If convicted, Bucio faces up to 90 days in jail.
National, State and Local News
US Hospitality Industry Often Unwilling to Hire Disabled Workers
Medical Daily -
http://www.medicaldaily.com/news/20120126/8928/disabilities-disability-training-awareness-training-prejudice-stereotype-misconception-survey.htm
Employers in the U.S. hospitality industry are often reluctant to hire people with disabilities because of prejudices and stereotypes that these individuals are incompetent at doing the job or that they are most costly to employ than people without disabilities, according to a new study.
University of New Hampshire researchers surveyed 320 hospitality companies across the nation and found similar concerns and challenges regarding employment of people with disabilities.
Researchers found that the most frequently cited challenge or concern among hospitality or leisure companies is that the “nature of the work is such that it cannot be effectively performed by people with disabilities” and researchers noted that workplace accommodations have been a “tried-and-true method of addressing the nature of the work.”
EEOC actions, enforcement trends focus of report on agency
Business Insurance
http://www.businessinsurance.com/article/20120127/NEWS07/120129902?tags=%7C70%7C75%7C305%7C303
Other anticipated trends, according to the report, include:
• Equal pay. “While legislation to amend the Equal Pay Act and the Paycheck Fairness Act has been stalled in Congress, this issue will remain front and center at the EEOC,” in tandem with other federal agencies, says the report.
• Hiring issues. The report notes that the EEOC recently held a series of meetings to examine the impact of certain hiring practices on protected groups, including criminal history and credit reports. “Recent commission-initiated litigation also indicates this issue will remain among the forefront of the EEOC's systemic litigation agenda,” says the report.
• Americans with Disabilities Act issues. Prior to enactment of the ADA Amendments Act, “disability issues were bogged down in litigation over individual coverage under the issue. For a period of time, EEOC-initiated cases could not even be filed without approval from the commission. Such hurdles have now been removed and the battleground has shifted to the reasonable accommodation process,” says the report. “Vigorous enforcement can be expected in the coming year, as already has been the case over the past year.”
Spirit Airlines fined $100000 over disabled passengers' complaints
Los Angeles Times
The U.S. Department of Transportation fined Florida-based Spirit Airlines $100,000 Friday for failing to appropriately keep track of and respond to complaints about its treatment of passengers with disabilities.
Under federal rules, airlines must sort, categorize and respond in writing to all complaints regarding the treatment of passengers with disabilities.
“Our rules on how airlines handle disability-related complaints are designed to help us ensure that passengers with disabilities are treated fairly when they fly,” said U.S. Transportation Secretary Ray LaHood. “We will continue to make sure carriers comply with our disability rules and take enforcement action when they do not.”
In an inspection of Spirit's corporate headquarters in Miramar, Fla., the federal Aviation Enforcement Office found that the carrier failed to adequately categorize and account for all disability-related complaints, resulting in an undercount of such complaints in the airline's 2009 annual report to the Department of Transportation.
In addition, the agency said Spirit failed to adequately respond to "a vast majority of the disability-related complaints it received in 2009 and 2010."
A spokeswoman for Spirit declined to comment on the fine.
Judge rules that Arizona voucher program for parents of disabled students is constitutional
The Republic
http://www.therepublic.com/view/story/ba53e1d3271147b9b49434f36403cb95/AZ--Voucher-Challenge/
A new court ruling says Arizona's school voucher program for students with disabilities is constitutional.
The ruling released Thursday rejects arguments by opponents of the program that it violates state constitutional prohibitions on using public money to support religious or private schools.
Recent blogs
EEOC Disables Employers
Heritage.org
http://blog.heritage.org/2012/01/25/tales-of-the-red-tape-25-eeoc-disables-employers/
A high school diploma has long served as the most basic requirement for an entry-level job (notwithstanding declining standards in government schools). But now comes the Equal Employment Opportunity Commission (EEOC) declaring that a sheepskin prerequisite constitutes discrimination.
--
Sherri L. Rita, J.D.
Lead Trainer & Consultant
Northwest ADA Center
http://dbtacnorthwest.org/
opportunityaccess at gmail.com
mobile: 503.804.4425
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