The U.S. Supreme Court will hear a record number of ADA cases this term, further defining the scope of the civil rights law prohibiting discrimination based on disability.
Cleveland v. Policy Management Systems Corp.-- The U.S. Department of Justice filed an amicus brief with the U.S. Supreme Court arguing that, in determining whether a plaintiff is a qualified individual with a disability in a Title I employment suit, courts should not give any special weight to the fact that the individual has also applied for Social Security disability benefits. The case in which Carolyn Cleveland brought suit against her former employer for termination she argued was disability based, was dismissed by the district court. The district court agreed with the employer that the employee’s representation in her application for Social Security benefits--that she was unable to work because of a disability--prevented her from claiming she is a “qualified individual with a disability” under the ADA. DOJ argues that because the qualification standards under Social Security and the ADA are different, application for or receipt of Social Security benefits is not itself inconsistent with being a qualified individual with disabilities. For example, Social Security does not consider reasonable accommodation in determining whether an applicant is able to perform the applicant’s past or other work.
Mitigating measures: Disability or not?
Sutton v. United Air Lines; Murphy v. United Parcel Service--The Supreme
Court will discuss the issue of whether mitigating measures, such as
medicines or prosthetic devices, are to be taken into account in
determining whether a plaintiff is an individual with a disability under
the ADA. In Sutton, the U.S. Court of Appeals for the 10th Circuit
held that an individual’s corrective lenses should be taken into account
in determining whether his or her vision impairment is a disability.
In Murphy, the plaintiff with high blood pressure was determined not to
have a disability under the ADA as the plaintiff used medication to
control the condition.
Title II programs in most integrated setting
L.C. v. Olmstead -- The Supreme Court will review the decision of the U.S.
Court of Appeals for the 11th Circuit where Georgia’s failure to provide
services to two individuals with mental disabilities in the community,
rather than in an institution, could violate Title II. DOJ argued
unnecessary segregation of the plaintiffs could violate Title II, which
requires States to provide services in the most integrated setting
appropriate to the needs of the individuals with disabilities. DOJ
also argued provision of community-based services in this case would not
be a fundamental alteration of the State’s program.
Collective bargaining agreement cannot forfeit right to file ADA
complaint
Wright v. Universal Maritime Service Corporation -- The Supreme Court
recently ruled that a South Carolina longshoreman could file an ADA
lawsuit charging employment discrimination even though the job was covered
by a collective bargaining agreement that generally required arbitration
of employee grievances. The Court agreed with an amicus brief filed
by DOJ that the arbitration provision at issue in the agreement between
the International Longshoremen’s Association and several South Carolina
stevedore companies was not specific enough to waive an employee’s right
to seek court enforcement of ADA rights.
Dental care for patient with HIV is not a “direct threat”
After hearing Abbott v. Bragdon last term, the Supreme Court sent the case
back to the court of appeals for further review of the evidence on the
direct threat issue after it decided that asymptomatic HIV infection is a
disability under the ADA and that the patient was entitled to bring a
lawsuit challenging the dentist’s refusal to provide treatment.
The U.S. Court of Appeals for the First Circuit has since found that the
patient had produced adequate evidence that individuals with HIV can be
safely treated by a dentist as long as universal precautions are followed
and that the dentist had failed to introduce any evidence that treating
the patient would pose a direct threat to the health or safety of the
dentist or his staff.
Source: DOJ
For more information on activities of the Supreme Court and U.S. Department of Justice, surf the following web sites:
The issue of equal access to pedestrian walkways for people with disabilities has bumped up against the curb in Sandusky, Ohio. Last summer, Kelly Dillery, 30, was charged with child endangerment for riding her motorized wheelchair in the streets of Sandusky with her 4 year-old daughter sitting in her lap. Dillery uses the Sandusky streets for access where the sidewalks are inaccessible. According to media reports quoting accessibility consultants in the region that have traveled Dillery’s routes, “the sidewalks are impassable in most places, the curb cuts have curbs themselves, sometimes three or four inches.” In March, Dillery went to a jury trial on the misdemeanor charge in Sandusky Municipal Court. On a pretrail motion, Judge Erich O’Brien ruled to exclude testimony on the Americans with Disabilities Act. According to Sandusky Register reports, O’Brien said Dillery could testify as to why she did not find it practical to use the sidewalks, but specific mention of the ADA standards would be prohibited. While Dillery was found not guilty, she has brought to light the issue of access to pedestrian walkways for people with disabilities. It is likely this is not the end of discussion about Sandusky’s curb cuts. To read the chronology of the Dillery case, visit the newspaper site at www.sanduskyregister.com.
Sandusky, Ohio could be Anytown, U.S.A.....void of a transition plan and self-evaluation; and lagging behind in barrier removal. While Sandusky city officials have put together a team to complete their Title II administrative requirements, the issue still highlights the need for communities to look at barriers to program access, specifically, lack of curb cuts.
In order to achieve program access, Title II suggests it may be necessary to install curb ramps to provide access to existing pedestrian walkways on existing streets that are not otherwise being altered. Title II entities were required to complete any structural changes to achieve program access by January 26, 1995, unless the public entity could demonstrate it would result in a fundamental alteration of its program or impose undue financial and administrative burdens.
There have been some misinterpretations in communities that the deadline for structural changes to achieve program access has been extended. In 1995, the U.S. Department of Justice issued a Notice of Proposed Rulemaking (NPRM) that would extend the deadline for Title II requirements to make pedestrian walkways accessible with curb ramps by 5-10 years. The NPRM was issued out of a request to DOJ from Senators Dole, Harkin, Hatch, Kennedy and McCain. To date the proposed rule has not been issued as a final rule, and therefore is not enforceable. However DOJ has issued some technical assistance letters on the issues of curb cuts. To view the letters on the web visit: www.usdoj.gov/crt/foia/talindex.htm.
Reference letters:
#661 Broken sidewalksSource: FR, Vol 60, No 227, P 58462
#679 Public streets & intersections
#687 Title 2 responsibilities
#691 Painting curb ramps
#760 Snow removal
#754 Impassable areas
On March 2, the U.S. Equal Employment Opportunity Commission issued its latest in the list of ADA-related enforcement guidances: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. The newly issued guidance examines what “reasonable accommodations” means under Title 1 of the ADA and who is entitled to receive a reasonable accommodation. The guidance also addresses what constitutes a request for reasonable accommodation, the form and substance of the request, and an employer’s ability to ask questions and seek documentation after a request has been made. The following passages include excerpts from the new EEOC guidance.
Employers coordinating requests for reasonable accommodations are encouraged to read the document in its entirety to gain a greater understanding of employer responsibility under Title 1.
View and download the full guidance at www.eeoc.gov
or call the Great Lakes ADA Center to order
a copy.
Title 1 of the Americans with Disabilities Act of 1990 requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”
How must an individual request a reasonable accommodation?
When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.” While an individual with a disability may request a change due to a medical condition, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer. In some instances, before addressing the merits of the accommodation request, the employer needs to determine if the individual’s medical condition meets the ADA definition of “disability,” a prerequisite for the individual to be entitled to a reasonable accommodation.
May an employer ask an individual for documentation when the individual requests reasonable accommodation?
Yes. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation.
Are there situations in which an employer cannot ask for documentation in response to a request for reasonable accommodation?
Yes. An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested.
If, as a reasonable accommodation, an employer restructures an employee’s job to eliminate some marginal functions, may the employer require the employee to take on other marginal functions that s/he can perform?
Yes. An employer may switch the marginal functions of two (or more) employees in order to restructure a job as a reasonable accommodation.
How should an employer handle leave for an employee covered by both the ADA and the Family and Medical Leave Act (FMLA)?
An employer should determine an employee’s rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.
For example: An employee with an ADA disability needs 13 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available), so this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, the employer could deny the employee the thirteenth week of leave. But, because the employee is also covered under the ADA, the employer cannot deny the request for the thirteenth week of leave unless it can show undue hardship. The employer may consider the impact on its operations caused by the initial 12-week absence, along with the other undue hardship factors.
If an employer has provided one reasonable accommodation, does it have to provide additional reasonable accommodations requested by an individual with a disability?
The duty to provide reasonable accommodation is an ongoing one. Certain individuals required only one reasonable accommodation, while others may need more than one. If an individual requests multiple reasonable accommodations, s/he is entitled only to those accommodations that are necessitated by a disability and that will provide an equal employment opportunity.
May an employer tell other employees that an individual is receiving a reasonable accommodation when employees ask questions about a coworker with a disability?
No. An employer may not disclose that an employee is receiving a reasonable accommodation because this usually amounts to a disclosure that the individual has a disability. The ADA specifically prohibits the disclosure of medical information except in certain limited situations, which do not include disclosure to coworkers. An employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as “different” or “special” treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. Since responding to specific coworker questions may be difficult, employers might find it helpful before such questions are raised to provide all employees with information about various laws that require employers to meet certain employee needs (ADA, FMLA), while also requiring them to protect the privacy of employees.
The Great Lakes DBTAC does not review the featured materials for their accuracy. This portion of the newsletter contains new products or services that have been called to our attention. Their inclusion should not be construed as an endorsement.
ADA for Illinois welcomes its new co-chairperson, Shelley Sandow, LCM Architects. Shelley joins Aileen Mayka, Target Stores, in coordinating the state steering committee activities. ADA for Illinois is focusing on access to public schools and small businesses in 1999. For updates on ADA for Illinois activities, visit its new web site at www.ada-il.org.
ADA Indiana is currently reviewing the responses to their Collaborative
Community ADA Implementation Projects Request for Proposals. The purpose
of the projects is to enhance understanding awareness and/or compliance
with the ADA in local communities. The Steering Committee is also looking
forward to the responses to the Targeted Community ADA Training Projects
Request for Proposals due this spring. ADA Indiana recently updated
their web site, visit www.isdd.indiana.edu/~cpps/ada.html
The Michigan ADA Steering Committee awarded 1999 mini-grants to: Capital Area CIL for work in the African-American community; Michigan Association for Deaf, Hearing and Speech Services for workshops on the rights of deaf and hard-of hearing constituents in the judicial system; Lakeshore CIL for consumer and employer training on reasonable accommodations for individuals with psychiatric disabilities; ARC of Calhoun County working with community businesses on ADA requirements; and the Disability Network to conduct two “Good Morning Meeting” forums for discussion of the ADA. For questions, call Tom Masseau at (517) 374-4627.
ADA Minnesota will offer a workshop highlighting the ADA rights of people with psychiatric disabilities and HIV/AIDS on May 4. This workshop is a repeat performance based on the success of the same session offered last October in Minneapolis. For more info call ADA Minnesota at (651) 603-2015 (V) or (651) 603-2001 (TTY).
In association with American Electric Power, ADA-OHIO is revitalizing its
training and marketing agenda for businesses. Planned statewide
training events include: training with the Ohio Association of Realtors
and the Ohio SILC for realtors; training with the Ohio Civil Rights
Commission; and training for the hotel/motel industry in cooperation
with the Adam’s Mark Hotel. ADA-OHIO also announces staff Brian
Fisher has accepted a position in the corporate sector. Brian has
been a strong advocate for the organization,
he will be greatly missed.
WI ADA Partnership will engage in a strategic planning process focused on
identifying the needs and directions to facilitate Wisconsin’s ongoing
ADA compliance efforts. They will begin the process with a retreat
sponsored by the American Family Insurance Company in June. In
addition, they are actively involved in planning a statewide observance of
the 10th Anniversary of the ADA. Committee members have already
solicited support from major organizations and groups to collaborate in
marking this historic event for people with disabilities and the
communities they live and work in.
In a statewide educational effort to promote self advocacy by people with
disabilities and their family members in Illinois, 1,500 full training
scholarships are available through June 30 courtesy of Equip for Equality,
Inc. and the Illinois Department of Human Services. Organizations
interested in cosponsoring a seminar may reserve scholarships for their
entire group. Seminars may be cosponsored by consumer and family
groups, social service agencies, schools, local government and any other
organization which has at least 15 individuals planning to attend.
Scholarships are limited to individuals with disabilities and their family
members and guardians. Full scholarships will be distributed on a
first come, first serve basis--a value of $49 per person. For more
information, contact the Training Institute on Disability Rights at Equip
for Equality at (312) 341-0022 or (800) 537-2642.
Regulations for the reauthorized Individuals with Disabilities Education
Act (IDEA), released March 12 by the U.S. Department of Education, are
available through three PACER Center web sites: www.pacer.org;
www.fape.org; and www.taalliance.org. More information on IDEA can
also be found on the Policymaker Partnership for Implementing IDEA website
at www.ideapolicy.org.
Assistive Technology in the Heartland Conference & Expo
April 25-28, Indianapolis. For more information contact Breaking New
Ground at (800) 825-4264.
Illinois Coalition of Citizens with Disabilities Conference
April 26-28, Springfield, Illinois (800) 433-8848.
Solidarity Conference
May 23-25, Columbus, Ohio
Hyatt Regency Hotel. This biannual event is sponsored by many
organizations within the disability network as well as by private
industry. Contact the Meeting Connection at (614) 888-2568.
Ohio ADA Anniversary Party
July 25, Columbus, Ohio
Statehouse Atrium. For more information contact ADA-Ohio at
614-844-5410 (V) or 614-844-5868 (TTY)
Abilities Expo
July 30 thru August 1, Chicago
(203) 882-1300, www.abilitiesexpo.com
National Summit
August 25-29, Portland Oregon
Sponsored by the National Mental Health Consumers’ Self-Help
Clearinghouse (215) 751-1810 (V), (215) 751-9655 (TTY) or
www.mhselfhelp.org
Surfing the Web
Resources for people with psychiatric disabilities managed by the Center
for Psychiatric Rehabilitation at Boston University. www.bu.edu/sarpsych/jobschool