Last year a new law went into effect in New York requiring businesses to signal ADA accessibility with a new and more progressive-flavored wheelchair icon that suggests forward motion as opposed to plain old static sitting. (It also bans any use of the word “handicapped” on accessible signage, because controlling language is something we want government to do.) New York businesses still have to comply with federal icon display requirements, however, and if they do not want to display two icons at once — which would likely mislead many users into assuming that some distinction in meaning between the two must be intended — they will have to hope to be covered by a catch-all in federal law that allows “alternative” compliant designs provided they offer “substantially equivalent or greater accessibility and usability,” an undefined phrase in this context. [John Egan, Seyfarth Shaw ADA Title III blog]
Lawyers wield an array of coercive powers against third parties, as well as looking after the entrusted interests of often unsophisticated parties and clients. And the goal of accommodating lawyers and aspiring lawyers who suffer from mental illness must be balanced against the “threat” their condition will sometimes pose to clients and the public — at least that’s what the president of the Florida Bar says. With language like that, it’s no surprise his bar appears to be on a collision course with the ADA (Americans with Disabilities Act) enforcement efforts of the U.S. Department of Justice. [ABA Journal]
More: Scott Greenfield wonders who’s looking out for clients’ interests.
An 8-5 decision from (these days) one of the nation’s more liberal circuits in EEOC v. Ford Motor Company:
The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job—or job schedule—of their choosing. Jane Harris, a Ford Motor Company employee with irritable bowel syndrome, sought a job schedule of her choosing: to work from home on an as-needed basis, up to four days per week. Ford denied her request, deeming regular and predictable on-site attendance essential to Harris’s highly interactive job. Ford’s papers andpractices—and Harris’s three past telecommuting failures—backed up its business judgment.
Nevertheless, the federal Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA. It alleged that Ford failed to reasonably accommodate Harris by denying her telecommuting request and retaliated against her for bringing the issue to the EEOC’s attention. The district court granted summary judgment to Ford on both claims. We affirm.
A deputy clerk of court in North Carolina allegedly suffered from social anxiety disorder, characterized (per the DSM) as “marked and persistent fear of … social or performance situations in which [a] person is exposed to unfamiliar people or to possible scrutiny by others.” While these fears led her to request to be insulated from customer service responsibilities, they did not inhibit her from secretly tape recording interviews with four supervisors involved with her firing. Reversing a lower court, the Fourth Circuit allowed her ADA accommodation claims to go forward in what Robert Fitzpatrick calls a “remarkable, and potentially far-reaching decision.” Excerpts from Fitzpatrick’s account:
Similarly, in a footnote, the Court indicated that if the plaintiff, took longer than necessary to complete her microfilming work and procrastinated in returning to the front desk, as the defense had alleged, “this may constitute avoidant behavior consistent with a diagnosis of social anxiety disorder.”
The court also reasoned that because the employer, on top of the various reasons it cited in firing her, later cited additional grounds for firing when the case reached a judge, this suspicious “piling on” could be read as evidence of pretext.
- Sheldon Silver’s law firm reportedly loses its special status in courts [New York Post] “Ex-congresswoman could get payout from court tied to Silver” [same; former Rep. Carolyn McCarthy]
- “High School Teacher With Fear of Young Children Loses Disability-Bias Case” [EdWeek, h/t @aaronworthing]
- “Worth remembering that, if they had the power in the 1980s, the public health lobby would have forced us to eat a diet they now say is bad.” [Christopher Snowdon, earlier]
- Numbers confirm that AG Eric Holder’s forfeiture reform won’t directly affect great majority of cases [Institute for Justice via Jacob Sullum, earlier]
- Despite curiously thin evidence that they work, bans on texting while driving roll on, including Mississippi [Steve Wilson, Watchdog, thanks for quote, earlier here, etc.] Draft Ohio bill has numerous troubling features, including broad bar on future technologies, vague distraction ban, stiffer penalties without judicial discretion, mandatory court dates for minor offenses [Maggie Thurber, Ohio Watchdog, thanks for quote]
- Cop’s defense in sex assault of teen: he “[had] money problems and a bad guy scared [him]” [Trumbull, Ct.; Scott Greenfield, Connecticut Post]
- “Dance like no one is watching; email like it may one day be read aloud in a deposition.” [Olivia Nuzzi]
In 2009, a driver with Old Dominion Freight Line, Inc., admitted to the company that he had an alcohol problem. The company told him that it would no longer allow him to drive heavy trucks for the firm. (It said it offered him a less safety-sensitive, but also significantly lower-paying, dock job.) The Equal Employment Opportunity Commission (EEOC) stepped in and sued on his behalf under the Americans with Disabilities Act (ADA). It conceded that Old Dominion could (and indeed had to) take the keys away from a heavy truck driver it found to be currently drinking on the job, but contended it had failed in its obligation to “make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment.” Of course backsliding and remission are common following rehab treatment, which means as a group drivers with known past alcohol problems will have a higher risk profile than drivers without. That is why at an earlier stage of the case I asked, “Are we really required to take chances with 18-wheelers on the highway?”
Now we know the answer: Yes. A jury agreed with the EEOC and awarded the driver $119,000 in back pay.
P.S. On the other hand, upholding the decision of a federal district court in Georgia, the Eleventh Circuit has ruled that Crete Carrier Corp. did not violate the ADA when it declined to employ a truck driver with a “current clinical diagnosis of alcoholism,” a bar to driving under DOT regulations.
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]