In June, the U.S. Supreme Court ruled that under the Americans with Disabilities Act, impairments should be evaluated in their corrected or "mitigated" state to determine whether they are disabilities. This ruling is significant departure from previous positions taken by the Equal Employment Opportunity Commission and the U.S. Department of Justice, whereby both agencies evaluated the impairment and substantial limitation of major life activity in their uncorrected state.
Chairwoman of EEOC, Ida L. Castro, responded to the Supreme Court decisions by saying that while the rulings "appear to significantly narrow the scope of those covered under the ADA, the Court affirmed EEOC’s standard of an individualized approach to the assessment of coverage under the ADA. In other words, the determination of whether an individual can bring a claim under the ADA should be assessed on a case-by-case basis." Her remarks to the 10th Annual Convention of the National Employment Lawyers Association (NELA) in New Orleans followed this term’s landmark ADA decisions by the Supreme Court in Cleveland v. Policy Management Systems, Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertsons v. Kirkingburg.
Moreover, Ms. Castro pointed out that the Court agreed with the Commission’s position on several key points. "First the Court clearly stated that people who use mitigating measures may still be substantially limited in major life activities and thus may enjoy the protection of the ADA. This is so because the Court indicated that people who use mitigating measures may, in spite of or because of those mitigating measures, be substantially limited in a major life activity." "Second," she continued, "the Court did not suggest that any conditions are per se excluded from coverage under the ADA. And third, the Court did not disturb the principle that employers are required, as before, to provide reasonable accommodations for people with disabilities and may not otherwise discriminate against them."
In July as response to the Supreme Court decisions, EEOC issued a field guide for EEOC investigators to assist them in the investigation and resolution of ADA-related charges.
On July 20, John Wodatch, Chief of the Disability Rights Section, Civil Rights Division, U.S. Department of Justice, was the featured speaker during a Great Lakes distance learning program on the Supreme Court decisions. During the session, Wodatch reiterated "The Supreme Court didn’t say if you are taking a mitigating measure that you are not a person with a disability. [The Court’s decision] means you have to look a lot more carefully. So the persons who in the past might have thought to be covered, now are at risk of not being covered. For example people with epilepsy who are taking medication: in the past we would have said someone with epilepsy is a person with a disability. Now we have to ask, even if their epilepsy is controlled to a certain degree by medication, are they still substantially limited in a major life activity?"
Wodatch concluded, "Look to the purpose of the ADA, which was really to shift how this country looks at disability in terms of the decision making made by entities covered under the law. The very notion that [an employer has] someone who has diabetes, but is able to do the essential functions of the job--that is the person [the employer] should be hiring. That is the purpose of this law. As the Courts continue to look at this, we will get back to a sense of balance."
The transcript from the Great Lakes distance learning session on the Supreme Court decisions can be viewed on the Great Lakes web site at www.gldbtac.org/transcript/scdecisions.htm
On July 23, 1999 the US Court of Appeals for the 8th Circuit ruled in a 6-4 decision that "... extension of Title II of the ADA to the State exceeds Congress’s authority under Section 5 of the Fourteenth Amendment." The case, C.B. Alsbrook v. City of Maumelle, Arkansas involves an individual with a congenital condition of amblyopia in his right eye that can be corrected to 20/30 vision. The Appeals Court reversed the decision of the district court’s denial of summary judgment, in essence saying Title II of the ADA exceeds Congress’s authority and is thereby unconstitutional in the 8th Circuit states including: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. During the last year, four other circuit courts (5th, 7th, 9th, and 11th) have found Title II to in fact be constitutional.
The U.S. Department of Justice has prepared amicus briefs on the issue of the ADA’s constitutionality which will be available directly from DOJ or can be downloaded from the DOJ web site at www.usdoj.gov/crt.
The Alsbrook decision can be reviewed on the web at www.findlaw.com. Search the 8th Circuit for: C. B. ALSBROOK v ARKANSAS COMMISSION ON LAW, No. 971825P - 07/23/99.
Doe v. Mutual of Omaha, the U.S. Court of Appeals for the 7th Circuit ruled that an insurer does not violate Title III by imposing special lifetime caps on treatment of AIDS-related conditions in health insurance policies. The plaintiffs, who are HIV-positive, challenged lifetime AIDS caps of $25,000 and $100,000, respectively, in their insurance policies. Those policies provide a lifetime cap of $1 million for medical conditions unrelated to AIDS. The district court had ruled that the AIDS caps violate Title III. The 7th Circuit disagreed both with the district court and with the U.S. Department of Justice amicus brief, concluding that Title III does not regulate the content of insurance policies or other goods or services offered by places of public accommodation. The court of appeals also ruled that to read Title III as reaching the content of insurance policies would violate another Federal law restricting Federal interference in State regulation of insurance.
Source: DOJ
In a settlement agreement with DOJ this spring, the nation’s second largest rental car company agreed to provide accessible airport shuttle buses at all of its airport locations nationwide. The agreement resolved a complaint filed by a traveler who uses a wheelchair alleging that Avis violated the ADA by not providing access to the shuttle system that operates between the terminal at the Detroit Metro Airport and its offsite rental car facilities. During negotiations, Avis agreed to expand the settlement to cover all of its airport shuttle systems nationwide. Avis will ensure that —
• each of the 36 shuttle systems at airport locations that it owns and operates will have at least one accessible vehicle by December 2000; some locations will have several accessible vehicles.• all newly acquired large shuttle vehicles will be accessible.• accessible curbside service, under which rented vehicles are delivered directly to the terminal where the customer with a disability is waiting, will be provided at all locations.• barriers to access will be identified and removed at each airport location.
When DOJ began its investigation, Avis had only six lift-equipped vehicles out of 286 in its fleet. When Avis is in full compliance with the agreement, it will have at least 153 accessible vehicles.
Source: DOJ
For a copy of the latest Status Report of the U.S. Department of Justice, visit the DOJ web site at www.usdoj.gov/crt/ada/adahom1.htm or call the GLDBTAC at (800) 949-4232 (Voice/TTY).
On July 9, 1999, the U.S. Access Board issued proposed accessibility guidelines for recreation facilities under the Americans with Disabilities Act. The guidelines, which will supplement the ADA Accessibility Guidelines (ADAAG) when finalized, cover the construction and alteration of:
• amusement rides
• boating facilities
• fishing piers and platforms
• golf courses and miniature golf courses
• sports facilities
• swimming pools, wading pools and spas
The Access Board will hold a public hearing in Boston on November 17. The proposed rule is open for public comment to December 8, 1999. Comments can be submitted by mail, e-mail or fax.
At the September meeting of the U.S. Access Board, the Regulatory Negotiation Committee on Outdoor Developed Areas made its final report. The committee has been charged with the task of negotiating proposed guidelines for outdoor developed areas including trails, picnic areas, campgrounds and similar outdoor environments. The Access Board will review the final report and eventually, with or without revision will issue a Notice of Proposed Rule for public comment.
In May, the Electronic and Information Technology Advisory Committee made recommendations to the U.S. Access Board on criteria for electronic and information technologies developed, procured, maintained or used by federal agencies under Section 508 of the Rehabilitation Act. Federal agencies must ensure that this technology is accessible to employees and members of the public with disabilities to the extent it does not pose an "undue burden." Section 508 speaks to various means for disseminating information, including computers, software, and electronic office equipment. It applies to, but is not solely focused on, Federal pages on the Internet or the World Wide Web. It does not apply to web pages of private industry. The final rule is required, by law, to be issued by February 2000. Some of the committee’s recommendations include criteria for accessibility of operations; compatibility with peripheral devices; and access to information, documentation, labeling and support.
For more information on the NPRM for Recreation Facilities, Final Report on Developed Outdoor Areas or Final Report on Electronic and Information Technology, visit the U.S. Access Board web site at www.access-board.gov. Hard copies and alternate formats can be order through the GLDBTAC at (800) 949-4232 or the U.S Access Board at (800) 872-2253.
ADA for Illinois continues to work on educational outreach to public schools and small businesses in Illinois. A "Small Business Advisor" web site has been developed to assist businesses in Illinois to find ADA resources throughout the state, visit www.ada-il.org. ADA for Illinois is also recruiting new members to join the state steering committee of the Great Lakes DBTAC. For more information contact the Great Lakes DBTAC at (800) 949-4232 (V/TTY).
ADA Indiana celebrated the 9th anniversary of the ADA on July 26 with a public celebration in downtown Indianapolis. Marilyn Golden, policy analyst with DREDF, was the featured keynote speaker. ADA Indiana has also selected the recipients of the 1999 grants programs. Funded projects include: ADA training for architects, builders, and construction workers, ADA training on playground accessibility, ADA training for staff and professors at IVY Tech State College, and evaluations of the accessibility of Indiana county fairgrounds. For more information contact ADA Indiana, Jon Barth at (812) 856-5548 (V) or (812) 855-9396 (TTY).
In July, the Michigan ADA Steering Committee hosted a training on "Reasonable Accommodations and Psychiatric Disabilities." The response was so overwhelming, a second training was held in August. The mini-grants awarded at the first of the year by the Michigan ADA Steering Committee are progressing at various stages. Five grants were awarded to various to conduct trainings/manuals to undeserved populations in their communities. For further information, contact Tom Masseau (517)374-4627 or tmassea@mpas.org.
ADA MN gave five mini-grants this year, recipients include: People with Disabilities in Duluth, Mental Health Association of Minnesota, PACER, Very Special Arts Minnesota, and the St. Paul Mayor’s Committee on Disability.
On Sunday, November 7, ADA MN will host a disability festival/fair at Holy Rosary Church in Minneapolis providing ADA information to the Latino Community. ADA MN is also part of the planning committee for the 12th Annual Multi-Cultural Forum sponsored by University of St. Thomas and the Black MBA Association. For more information call ADA MN at (651) 603-2015 (V) or (651) 603-2001 (TTY).
ADA-OHIO hosted an anniversary celebration for the ADA at the state’s capitol in Columbus. The event was supported solely by volunteers and the business sector. Rich Wagner, a longtime associate of ADA-OHIO and nationally ranked marathoner, has gone to San Diego to take a position in the business sector. We wish him well and thank him for all that he has contributed to ADA-OHIO. Derek Mortland has taken his place. ADA-OHIO also bids farewell to Ed Sterling, DDS, as Chair of its Board of Trustees. Kim Arnold, President of KLA Consulting, is the new Chairperson. For more information, contact ADA Ohio at (614) 292-3160.
The ADA Wisconsin Partnership is coordinating celebrations throughout the state in honor of the ADA’s 10th anniversary on July 26, 2000. The Partnership is working with local Chambers of Commerce and interested groups that want to sponsor events, such as parades, poster contests, award ceremonies, picnics or displays. For more information, contact Jayne Wittenmyer at (608) 437-4628. In August, the ADA Wisconsin Partnership elected Dick Pomo as Co-Chairperson, to serve with Senior Co-Chairperson Gerry Born. For more information contact Jerry Vogt at (608) 266-8905 (V) or (608) 261-6311 (TTY).
November 22-23, Chicago. This is the bi-annual meeting of the Great Lakes ADA Center. The meeting will feature presentation from each of the Region V state steering committee on current ADA activities in their respective states. The meeting will also include an educational session on electronic and information technology access including access to the Internet. The meeting is open, however reservations must be made in advance with the GLDBTAC (800) 949-4232.
December 8-11, Chicago Hilton. For registration information (800) 482-TASH (8274) or www.tash.org.
May 9-11, 2000. Kansas City, MO. Registration information to become available after first of the year.
June 14-18, 2000, Providence, Rhode Island. www.adaptenv.org/21century To get on the mailing list for the conference, send e-mail to adaptive@adaptenv.org or call (617) 695-1225.
Get late-breaking information on the Americans with Disabilities Act and related issues by subscribing to the Great Lakes Listserv. Instructions for subscribing to the listserv are available on the Great Lakes web site at www.gldbtac.org.
The Great Lakes ADA Center has ADA information translated in Spanish. Materials are available for order through the Center and are also posted to the Great Lakes web site at www.gldbtac.org.
The Religion and Disability Program of the National Organization on Disability announced in September that over 550 congregations have signed on to the 2,000 by the Year 2000-Accessible Congregation Campaign. The campaign urges commitment from congregations to remove barriers to architecture, communications and attitudes that exclude people with disabilities from full and active participation. Resources available through the program include training conferences and publications available through NOD at (202) 293-5960, (202) 293-5968 (TTY) or the NOD web site at www.nod.org.