Great moments in unsuccessful ADA litigation: a panel of the Ninth Circuit Court of Appeals has upheld a summary judgment entered against a plaintiff who said his firing by the city of North Las Vegas constituted discrimination against him based on his hearing impairment as well as retaliation [Curley v. City of North Las Vegas]:
As part of the investigation, the Human Resources Department interviewed City employees and asked about their interactions with Curley. The interviews revealed that Curley had repeatedly threatened his coworkers and their families. For example, he threatened to put a bomb under a car, insinuated that he had mafia connections, and talked about giving a “blanket party” — which would involve throwing a blanket over a person’s head and beating him. One coworker reported that Curley threatened to kick his teeth out if the coworker did not join a union. On another occasion, Curley threatened to shoot his supervisor’s children in the kneecaps.
The interviews also revealed details about Curley’s work habits. Multiple coworkers said that Curley regularly conducted personal business while at work, sometimes spending up to three hours on his cell phone. It also appears that Curley was operating an ADA consulting business. Many of the calls he made during work were about the business, and coworkers saw him approach disabled individuals to discuss potential lawsuits.
Update thanks to reader Eric in comments:
I was thinking “He was only fired? Why isn’t he in jail?” so I googled him up. He has quite a history.
Astoundingly after he was fired from the city for his shenanigans, a school district (!) hired him as janitor. Six months later he was arrested for stalking (he kept threatening city employees). Finally (and after appearing in the papers) the school is attempting to fire him.
Young v. United Parcel Service, in the Supreme Court, which has been built up as a cause celebre, turns on whether the courts should feel free to re-interpret a 1978 federal law, the Pregnancy Discrimination Act, so as to include evolving ideas of a right to accommodation akin to the ADA. The alternative position is that if such a right to accommodation is now thought to be a good idea, advocates should get Congress to enact it into law explicitly. [Lyle Denniston and related SCOTUSBlog, USA Today, Bloomberg/Pittsburgh Post-Gazette with auto-play, The Economist]
Reports Angus Loten in the WSJ:
Small-business owners face a growing number of disabled-access lawsuits in the wake of a recent appeals-court ruling giving rise to disabled “testers,” as well as the release of detailed federal specifications for curb ramps, self-opening doors and other standards.
…A November 2013 decision by the Eleventh Circuit Court of Appeals in a case against Marod Supermarkets found that someone who isn’t necessarily a patron could be a “tester” of disabled-access compliance. That cleared the way for individual plaintiffs to bring dozens, even hundreds, of lawsuits against multiple businesses, as serial testers….
The litigation upswing also follows the Justice Department’s release of a set of compliance standards for the 24-year-old federal disability law. Those standards, which came into force in March 2012, include detailed specifications for long-standing requirements, such as the allowable slope of a wheelchair ramp and the exact height of towel dispensers in accessible restrooms. They also introduced a new requirement for hotels with pools to provide a “pool lift” for disabled guests, which went into effect last year.
Some business owners say the lawsuits accomplish little more than providing revenue to attorneys. …
We warned about the pool-lift requirement multiple times. The article reports that plaintiffs are filing multiple suits against hotels in Florida for not having the lifts; along with Florida, California and New York account for a high share of all accessibility actions against local businesses and retailers, in part because of favorable state and city laws that increase complainants’ legal and financial leverage.
“MIAMI – In a verdict in favor of U.S. Equal Employment Opportunity Commission (EEOC), a jury has found that a licensed security guard with only one arm was unlawfully discriminated against based on his limb loss when his employer removed him from his post following a customer complaint about his disability, the federal agency announced today.” The agency said it was well-settled under federal anti-discrimination law that employers cannot act on the basis of discriminatory consumer preferences. [EEOC press release]
Kansas: “A federal jury Tuesday awarded a former McPherson police officer who was found sleeping on duty almost $1 million in wages and damages. Matthew B. Michaels alleged the city violated his civil rights, the Americans with Disabilities Act, the Family Medical Leave Act and the Kansas Wage Payment Act. He was fired from the McPherson Police Department in July 2012. Michaels said he was discriminated against because of a sleep apnea disability.” [McPherson Sentinel]
“Because a blind or visually impaired individual cannot discern the visual cues displayed on the kiosk controls, they cannot independently browse, select and pay for DVDs at kiosks, and instead must rely upon sighted companions or strangers to assist them,” states the complaint, filed in a Pittsburgh federal court by Robert Johoda. “Further, the blind or visually impaired consumer must divulge personal information, including their zip codes, to sighted companions or strangers in order to complete a transaction at the kiosks.” [Legal NewsLine]
“The suit, filed by three mobility-impaired plaintiffs from San Antonio and Houston, claims that Uber and Lyft have violated the Americans With Disabilities Act, or ADA, by failing to provide a way for wheelchair users to take advantage of their services.” [Ted Troutman, Next City] Both services serve as intermediaries for users to offer rides in their vehicles.
“The Senate Foreign Relations Committee voted 12-6 in favor of the U.N. Convention on the Rights of Persons with Disabilities.” I’ve outlined the insuperable problems with the CRPD on many occasions, e.g. here (see also here, here, etc.). It’s not clear why Sens. Robert Dole and John McCain would think the best way to honor American military veterans is to yield up U.S. sovereignty over large swaths of domestic governance. [Reuters]
She’s suing Fulton Financial, her employer, under New Jersey’s state equivalent of the ADA for its resistance to accommodating her by switching her to less stressful commuting hours [Courier-Post]
“The Texas Supreme Court overturned a $362,000 disability discrimination judgment awarded to a captain for the City of Houston fire department who was removed from firefighting duties because his fear of entering burning buildings made him a danger to himself and others. City of Houston v. Proler, No. 12-1006 (Tex. June 6, 2014). According to the court, no reasonable jury could have found that his fear of entering burning buildings constituted a disability under the ADA or Texas law.” However, the court based its decision on the state of the law before Congress drastically widened ADA eligibility in 2009, so it’s not clear how such a case might come out if filed today. [Kevin Cox, Kollman & Saucier, P.A.; Eric B. Meyer]
If employers think they’ve got discretion to decide whether a job requires on-the-spot attendance, they’ve got another think coming [Daniel Schwartz, Jon Hyman]:
In EEOC v. Ford Motor Company, the Sixth Circuit Court of Appeals found that a former Ford employee could proceed to a trial on her claim that the company was required to allow her to telecommute on a regular basis. …
[The plaintiff was a] “resale buyer” at Ford who responded to emergency steel supply issues to make sure that parts manufacturers always had an adequate steel supply on hand.
According to Ford, her job required group problem solving, including interaction with other members of the resale team and suppliers….
[The court said that while] attendance at work is still an essential function of most jobs, “attendance” can no longer be assumed to mean presence at the physical workplace.
Instead, the court said, a jury should decide whether physical attendance is an “essential function” of the job under all the circumstances. Earlier here and, at Cato, here.
How far can an employee go in ADA demands before finally going too far? [Charles Toutant, New Jersey Law Journal]
The lawyer, a deputy attorney general known as E.H. in court papers, made 30 requests for special treatment in the course of his first year on the job—ranging from reserved indoor parking, adjusted timing on elevator doors, a grab handle in the rest room and transportation to court appearances—all of which were granted.
He sued because his 31st request—for a personal assistant who would “function as his shadow”—was refused.
On Thursday, an appeals court ruled that the Attorney General’s Office did not violate laws against disability discrimination. The court said deference was due the findings of the Civil Service Commission that an assistant was not warranted because it would not help E.H. address his weak job performance.
When the Americans with Disabilities Act was new, there was hopeful talk among some disability advocates of what some wary employers nicknamed “two-for-one” hiring — demands that a second employee be put on payroll to assist the first. While courts have generally declined to go along with this idea, it is sobering to think the issue might be close enough that the worker’s very poor job evaluations might have mattered one way or the other.
“Families with autistic children have sued Walt Disney Co., alleging the company does not provide adequate access to theme park visitors with autism who have difficulty waiting in long lines for rides.” [Reuters/Chicago Tribune]