Sued-if-you-do, sued-if-you-don’t dept.: “United Parcel Service tentatively settled a 10-year-old lawsuit Tuesday by agreeing to allow some deaf and hard-of-hearing employees to compete for jobs driving small delivery vans after special testing and training. …UPS argued that deaf drivers were more likely to get into accidents because they couldn’t hear sirens, screeching tires or other danger signals.” [Egelko/SF Chronicle] We covered the litigation in 2006.
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They also can’t hear crunching bones, or the screams of pedestrians as they back over them in parking lots.
Sued if you do indeed. It’s as good an argument for preemption as I can think of.
Just wait till the blind sue for the violation of their right to be UPS drivers…
Poser: Wouldn’t that be foreclosed by the loss in the suit by two blind sisters to become commercial airline pilots?
John Burgess: I can’t decide whether or not you’re kidding.
Was there ever evidence introduced to support either side, or do we just have the lawyers’ arguments to go on?
Bill Poser: Would I kid about a thing like that?
SUTTON et al. v. UNITED AIR LINES, INC.
You know, I am the first to say that our system is crazy at times. But really on these ADA suits, we shouldn’t allow our prejudice to cloud our thinking. The fact is that deaf people get in LESS accidents per capita than hearing people. Apparently hearing does more to distract us than to warn us, and when we think of all the things we do while driving you would realize that is true. We mess with our radios, talk on the phone, etc.
So what UPS said was actually bigoted in the sense that they judged without knowing the facts. The Deaf would-be drivers are right.
What we need to start doing is to stop assuming that this one trait overrides everything else. Even if being deaf impaired a person when driving (and apparently it doesn’t) are we really going to say that all deaf drivers, categorically, are poorer drivers than all hearing drivers? So the clean and sober deaf man is more dangerous than the chronic drunk because of the simple fact that he is hearing? Its silly. Each person who wants to be a driver should be judged on individual merit, not as members of a racial, gender-based, or even disability based class.
This is the second time this site has claimed a case was crazy and wrong because it allowed a handicapped person to perform a job that you guys didn’t think they could perform. Last time it was about a reading-disabled woman wanting to be an attorney, people apparently claiming you had to read by sight to be a lawyer, despite the fact that many blind people do just fine. We can and should be more reticent before we declare that a person with a certain disability CAN’T do something. It underestimates the adaptability of our species.
A.W., I think it should be up to UPS to decide, seeing as they drive billions of miles a year, rather than up to a court.
You may be right that the plaintiff would be a better driver than many drivers who drive while texting while drunk, but speak for yourself. I have never had any problem sending text messages while I was driving drunk, but, as they say, “your mileage may vary”. Well, that’s what the judge said, anyway.
John Burgess: That Sutton case isn’t as crazy as it sounds: according to the summary, their vision was correctable normal. So, it isn’t a case of people who can’t see wanting to be pilots. Rather, it is a case about whether the airline is reasonable in requiring a certain level of uncorrected visual acuity. Although I can imagine arguments based on emergencies, offhand it seems that the appropriate criterion would be corrected visual acuity.
A.W.: In a general way, your point is well taken, and in fact I don’t make these snap judgments. At the same time, I’ve seen some really ridiculous demands by disabled people, who either really couldn’t do the job in question well or safely, or could only do so with quite extreme accomodation. In the case at hand, I would be interested in a citation to the study on the safety records of deaf drivers, and in particular, whether it looked at circumstances comparable to those of UPS drivers. UPS drivers are probably under more time pressure than the average driver, they probably have to drive in unfamiliar areas more often, and at least in cities they probably have to parallel park, back up, and so forth more than the average driver. It is possible that the differences aren’t as great as I think they may be or that deaf drivers are safe even in these circumstances, but I would not take a general comparison of hearing and deaf drivers as necessarily relevant.
AW
Less (sic) accidents per capita doesn’t seem terribly meaningful unless (a) you are comparing deaf drivers to hearing drivers, as opposed to the deaf populace to the hearing populace (unless the proportion of drivers/nondrivers is the same in each group, (b) the groups drive comparable miles per year, (c) other demographic factors (age, geographic distribution, types of vehicles driven, commercial v. non-commercial driving, etc.) are considered. I am sure I am leaving out other potential factors.
How about a link to the source of your statement?
So what UPS said was actually bigoted in the sense that they judged without knowing the facts.
UPS applied the same Federal standard for drivers of vehicles over 10,000 lbs to vehicles under that weight. That is not being bigoted, that is exactly what the headline says – damned if you do and damned if you don’t. You don’t think that the first time a hearing impared driver (deaf drivers are still barred) hits something in a UPS vehicle that a plaintiff’s lawyer won’t bring up the Federal standard for drivers and then ask “why oh why didn’t UPS apply the same standard?!?!”
(There is also the little issue that in the settlement, the layers got $5.25 million dollars while the seven complaintants got $35,000 each, or $245,000 total.)
This is the second time this site has claimed a case was crazy and wrong because it allowed a handicapped person to perform a job that you guys didn’t think they could perform.
This is a misrepresentation of the discussion over the lawyer’s case. The issue wasn’t whether she could read by sight. The issue was the woman’s suing even after her failure in taking tests during which the school had made extensive accomodations for her “disabilities.” The issue was whether at some point do accomodations for a test on the ability to do a job render the test meaningless.
The school made what many considered broad, extensive and overreaching accomodations for the woman and yet she still failed. She never blamed herself for the failures, but rather blamed the school for not making more accomodations. By her standards, no one should ever fail because we all have different abilities and therefore different disabilities. In her world everyone would pass because those disabilities would be overcome by the school’s “accomodations.”
In the real world – the one where common sense is supposed to rule – we call that crazy.
A.W., the problem wasn’t that Marilyn Bartlett was blind. There’s no indication her vision was impaired in any way.
Obviously some remarkable accommodations were made to allow Dr. Bartlett to get her degrees, but the problem is that due to a cognitive disability she simply cannot read, as you and I can.
That might be fine and good if Dr. Bartlett’s law license could be restricted, as with a driver’s license. “No practice of law in any field of litigation, contracts more complex than a personal auto insurance policy, health care, or real estate involving title searches of deeds and land grants more than 20 years of age.” But a law license is unrestricted. She could take that license and represent criminal defendants at trial, an area where fast reading and comprehension is required because often, despite Brady, the defense attorney is handed documents in the middle of a trial, just before cross examination begins. Would you want your freedom on the line with an attorney who couldn’t read and digest new information quickly?
The fact is law, particularly litigation, demands the ability to process information rapidly. The Americans With Disabilities Act may demand accommodation for the attorney, but it won’t provide it for the client. “Ineffective assistance of counsel” is a notoriously difficult ground for obtaining appellate or habeas corpus relief in a criminal case, and there is no such relief whatsoever for the defendant in a civil case.
Bar admissions, in theory, are meant to protect clients, not prospective attorneys. Bartlett’s case is one where the Bar got it right.
Smoke
I bluntly don’t have a source. I have worked with enough deaf people long enough that I read it somewhere a long time ago, and I no longer know where.
But the real question is why you would assume that deafness harms more than helps? Rather than assuming anything, shouldn’t we instead judge by individuals?
I will also say that deaf people got so sick of paying higher premiums based on that bigoted assumption that they formed their own insurance company which amazingly doesn’t go out of business merely because all the drivers are deaf, nor do they have to raise their premiums. Which tends to back me up.
Gitar
> UPS applied the same Federal standard for drivers of vehicles over 10,000 lbs to vehicles under that weight.
First, of course we all know that the Federal Government can never be bigoted, right?
Second, yeah, the FG could have applied it to lower weights, and chose not to.
> You don’t think that the first time a hearing impared driver (deaf drivers are still barred) hits something in a UPS vehicle that a plaintiff’s lawyer won’t bring up the Federal standard for drivers and then ask “why oh why didn’t UPS apply the same standard?!?!”
Yes, and then that lawyer would have to show that the handicapped person actually was impaired in driving and that their impairment contributed to the accident. Even if they got the judge to agree that letting a deaf person drive is inherently negligent (unlikely), it is not enough to show there is negligence in the air but that it is causation.
Does our overactive tort system make it harder for companies to treat the disabled fairly? OF COURSE. But the answer isn’t to legalize unfairness, but instead to reform the tort system.
Certainly 50 years ago, when black people wanted to be hired as drivers, there was a concern that if a black driver got in an accident the jury would assume he was negligent. but we recognized, and rightly so, that we cannot let the prejudices of others be a justification for discrimination anymore than we can cite our own prejudices.
> (There is also the little issue that in the settlement, the layers got $5.25 million dollars while the seven complaintants got $35,000 each, or $245,000 total.)
Actually it was a class action, so in fact there were more than 7 complainants. Its one of the rare cases of a class action making some sense. And believe you me, I am very hard on class actions.
> This is a misrepresentation of
You misunderstand. I am talking about Bartlett.
Patrick
> A.W., the problem wasn’t that Marilyn Bartlett was blind. There’s no indication her vision was impaired in any way.
You’re missing my point. How can you say that reading by sight is a bona fide occupational qualification for a lawyer, if we allow blind lawyers? You are right. She is NOT as impaired in reading by sight as a blind person. But you are wrong to think it weakens her case. In fact the opposite is true. The argument for excluding her is weaker, not stronger, than it would be if she had been blind, BECAUSE SHE IS NOT AS IMPAIRED.
The fact is there is no argument you can array for the wholesale exclusion of dyslexics like Bartlett that wouldn’t apply equally to a blind lawyer. Thus if we allow blind lawyers, we must allow people as dyslexic as Bartlett. What’s so complicated about that?
> Obviously some remarkable accommodations were made to allow Dr. Bartlett to get her degrees, but the problem is that due to a cognitive disability she simply cannot read, as you and I can.
So worse comes to worse, she hires someone to read it to her. And?
Seriously, what do you think a blind person does when they are a lawyer?
This is the problem when non-disabled people try to “estimate” what a handicapped person can do. You guys suck at it, frankly. And a little more humility would go a long way.
The fact is Bartlett and other handicapped people have typically put a lot more thought into the subject than anyone else and they share ideas among other handicapped people all the time. They are to a one experts in accommodating their own disabilities. I can’t tell you how often I hear a nondisabled person say they don’t think a handicapped person can do something, only to be proven wrong. And what is disgusting is how often big brother government is allowed to tell you that you CAN’T do something, based on erroneous assumptions about your abilities. And I will remind you that the bar associations have a long history of excluding people based on traits that weren’t actually relevant, such as being a woman or minority.
And if you want to know why I favor limited government in general, well, there you go. Between the discrimination I faced in the hands or our socialist education system, to dealing with government institutions that thought it knew better than I did about my capabilities, I am definitely of the view that this kind of unjust interference is endemic to bureaucracy and so the less we have of it, the better.
First, of course we all know that the Federal Government can never be bigoted, right?
Do you have any evidence that the standard is bigoted?
Second, yeah, the FG could have applied it to lower weights, and chose not to.
Which leads back to the original premise that a lawyer would and could say to a jury “why didn’t UPS apply the same standard to lower weight vehicles?” It is not as if we have not seen lawyers make the arguement that a product or policy of the Federal government was surpassed by a company and yet the company should still be held accountable.
You misunderstand. I am talking about Bartlett.
No sir, I didn’t misunderstand. Your representation of what commenters said in the Bartlett case was wrong. The issue was not the accomodations being wrong, but the continued extension of those accomodation past the point where the test meant nothing.
Gitar
> Do you have any evidence that the standard is bigoted?
Wrong question. Do they have any evidence that deaf people are worse drivers than hearing people? I refuse to assume that the federal government is perfect until proven otherwise. If they are going to shut an entire class of people out of a profession and thus restrict their freedom, they should bring forth evidence backing them up. Its not the burden of the deaf to prove they are equal, but the burden of the government to show they are inferior, or else they should not discriminate against them.
Because in the absence of evidence that deaf people are worse drivers (and I know in fact they are better), then it is a bigoted standard that the government has applied. And indeed it has to go even further. They should have to show that they are bad enough drivers that they represent a uniquely frightening hazard when driving.
> Which leads back to the original premise that a lawyer would and could say to a jury “why didn’t UPS apply the same standard to lower weight vehicles?”
And the defense attorney can say, “look guys. We were sued for doing so as a violation of the ADA. And you know what? Those deaf drivers were right. What the plaintiff’s attorney is doing is engaging in pure bigotry. He has not shown that deaf drivers are worse drivers on balance than hearing drivers and when you think about it, its not self-evidently true. Deaf drivers surely aren’t going to get into an accident because they were talking on the cell phone or fiddling with the radio as a hearing person might. And certainly the best deaf driver is better than the worst hearing driver. So rather than make a blanket assumption about deaf drivers, we considered them as individuals. There was nothing in this individual’s driving record that suggested he was unsafe. The plaintiffs attorney wants to punish us for practicing equality of opportunity as required by law; don’t give in to his bigotry.” That attorney might even find a source for that study I mentioned before.
Indeed, if the imaginary defense attorney tries to say that it was negligence to hire a deaf man per se, then the attorney can have that dismissed by citing the ADA and federal preemption. If the ADA commands them to hire deaf people, then no state law can punish them for complying with federal law.
> No sir, I didn’t misunderstand.
Don’t get all huffy with me. You don’t even understand the facts in Bartlett, or at least misstated them, leading me to think you were talking about a different case. That’s your fault, not mine.
> Your representation of what commenters said in the Bartlett case was wrong.
Well, here is one post: http://overlawyered.com/2009/06/sotomayor-and-the-adabar-exam-case/#comments
And here is what was quoted from Anthony Dick:
“you might think that, since reading ability is an important part of practicing law, and the bar exam is designed to ensure minimal competence among lawyers, papering over a test-taker’s lack of reading ability would somewhat defeat the purpose.”
Gee, that seems to fit my description very well.
And of course I objected to that logic even then, saying pretty much the same thing I am saying here.
And it has never made sense. Even if she absolutely cannot read by sight, neither can the blind and yet they get by somehow. So why should reading by sight be part of the bar exam?
Now I did assume at the time that Olson was citing Dick’s commentary favorably. And I was right. Walter Olson referred in that post to his own write ups elsewhere, which included:
> What the law is really doing in such cases, it seems clear, is forcibly redefining old standards of competence. Just as the PGA wrongly imagined until the Casey Martin case that it had the right to define golf in the traditional manner to include walking from hole to hole, so the bar examiners must be disabused of the idea that they can hold aspiring lawyers to traditional legal skills such as the ability to assimilate large amounts of written material quickly.
http://www.reason.com/news/show/30908.html
By the way, I find it funny he wrote that for Reason which has the slogan “free minds and free markets.” Well, except when it comes to disabled attorneys—lets make sure the market is well regulated in that regard.
Sorry, Mr. Olson, but if you are listening I think you are way off on this one. Bartlett was the right outcome and the UPS was right to settle. We should not allow our dislike of our overlawyered society to blind us to when lawyers really are doing some good.
Wrong question.
So you make a claim and then cannot back it up? The question is the correct one to ask as you made the claim that the Federal government is bigoted and therefore must be bigoted in the driver’s standards.
Don’t get all huffy with me.
No one is being “huffy.” You made an accusation that was incorrect.
You don’t even understand the facts in Bartlett, or at least misstated them, leading me to think you were talking about a different case. That’s your fault, not mine.
Except for one thing – I didn’t misstate the facts in the case at all.
And here is what was quoted from Anthony Dick:
If you had bothered to read the linked articles (by Dick and Walter Olson) you would have seen that the depths of the points went far beyond what you say they did.
Here is what Dick wrote additionally:
“The plaintiff in the case had graduated (barely) with a GPA of 2.32 from Vermont Law School, where she had received substantial accommodations for her professed learning disability. ”
Olson’s comment was:
“Judge Sotomayor ruled that a seriously learning-disabled bar applicant who’d already failed the bar exam several times with extensive accommodations was legally entitled to yet further chances and accommodations. ”
He then links to several articles, including his own, which only reinforce the fact that it is not the accomodations that Bartlett received, but her continued demand for more accomodations that all but render any test or objective standard meaningless.
You summation of what was said is still inaccurate.
Even if she absolutely cannot read by sight, neither can the blind and yet they get by somehow. So why should reading by sight be part of the bar exam?
This has been a strawman argument of yours for sometime. It is not that she cannot read by sight. It was her lack of speed and comprehension even after extensive accomodations in reading that was the issue.
And I was right. Walter Olson referred in that post to his own write ups elsewhere, which included:
You missed the sarcasm in his point, didn’t you?
By the way, I find it funny he wrote that for Reason which has the slogan “free minds and free markets.” Well, except when it comes to disabled attorneys—lets make sure the market is well regulated in that regard.
I find it amusing that you are calling the overregulation of associations and companies “free market.”
Gitar
> So you make a claim and then cannot back it up?
Are you telling me that everything you know you can cite to something else to prove?
No, and I said that before. But its still the wrong question. Any believer in limited government should require the federal government to prove its claims and not just assume they are well founded.
> Except for one thing – I didn’t misstate the facts in the case at all.
Really? Well, you didn’t seem to understand that the issue was a bar association not a law school. This is what you wrote:
> The school made what many considered broad, extensive and overreaching accomodations for the woman and yet she still failed. She never blamed herself for the failures, but rather blamed the school for not making more accomodations.
The very title of the case, Bartlett v. Bar Examiners, should have tipped you off to the fact that this had nothing to do with a law school. Its not the end of the world, but you did misstate the facts.
> Here is what Dick wrote additionally:
Which does nothing to detract from my point that what Dick wrote would apply to even the blind, and would indeed bar anyone who can’t sight-read from the legal profession, if adopted by the courts.
Ditto with the additional olson comment.
> He then links to several articles, including his own, which only reinforce the fact that it is not the accomodations that Bartlett received, but her continued demand for more accomodations that all but render any test or objective standard meaningless.
No, that is not what he said at all. He didn’t say that only Ms. Bartlett should be excluded, but anyone who can’t sight read.
> This has been a strawman argument of yours for sometime. It is not that she cannot read by sight. It was her lack of speed and comprehension even after extensive accomodations in reading that was the issue.
No, you fail to understand my point. Even if her dyslexia means that she should never read by sight, she can still just do what the blind do. My point is to say I don’t care how severe her dyslexia is, no matter how bad it is, it doesn’t justify exclusion from the legal profession.
> You missed the sarcasm in his point, didn’t you?
Are you telling me he supports Bartlett’s case?
> I find it amusing that you are calling the overregulation of associations and companies “free market.”
Lol. Are you under the impression that the bar association (including its bar examiners) is a private group? It is an arm of the state government. Their job is to regulate the legal profession—that is, to control the market for legal services. If a bar association says so, you literally cannot practice in the legal profession. Limiting their ability to do so, therefore, makes our markets freer, not less so.
Now when it comes to UPS and I suspect Casey Martin applying the ADA there is regulation of the market. Unquestionably. But if you reread what I wrote, I didn’t refer to them when I said that.
And is that restriction on the market justified? Well, actually I thought the Casey Martin case went a little too far, but ultimately it was sui generis anyway—not likely to impact any other business except sports. I mean Scalia had a point when he said in oral argument, more or less, of course the walking rule is silly, but that’s what sports are about: silly rules. But as for UPS, our long sad history of racial discrimination demonstrates that sometimes businesses suffer from mass irrationality. Frank Wu’s “yellow,” for instance, has a wonderful chapter where he demonstrates as a statistical fact that asian Americans face discrimination. The example of the business owner complaining of the need to build wheelchair ramps is another example. He stated that in all his years in business he never put up a wheelchair ramp, and no wheelchair-bound customer ever came to his store. It never occurred to him that maybe they never came BECAUSE he had no wheelchair ramp.
And some incentives even encourage discrimination. Imagine its 1955, and you run a shipping company and you have to decide whether to hire a black driver. You aren’t a racist, but you are looking at this rationally. And you know that if you do, you know that racist juries are more likely to find that driver negligent, less likely to believe his testimony, etc. It isn’t crazy for even a non-racist to say, “I just don’t need that financial risk.” In a very real way, back then you paid a real price for doing the right thing. The civil rights act of 1964 was important then in creating an incentive to do the right thing. And the ADA serves a similar function. Indeed the very concern that has been cited from the beginning, including by you, that if a deaf person gets in an accident they are more likely to get sued, is exactly why we need the ADA. Even if you were right, if they would be sued if they did, sued if they didn’t, well at least that balances it out. If they were only going to be sued for hiring a deaf person, but not for refusing to do so, then just how many deaf people would they hire? And knowing how often frivoulous suits are filed would you have any confidence that this is because deaf people are actually worse drivers, or because some lawyers are sleazy bastards who will use any cockamamie excuse to sue, and deaf drivers would be seen by such unethical lawyers as easy targets?
I will add that getting bartlett’s facts a little wrong didn’t undermine your argument. it just led to a misunderstanding. whether we are talking about law school or the bar exame, obviously the issue is the same: what are the bona fide occupational qualificatons of lawyers?
You seem to think sight reading is one of them. i don’t.
Are you telling me that everything you know you can cite to something else to prove?
Nope. But this is the second time in this you made an accusation without backing.
Are you telling me that you I should just trust your judgment on what is “bigoted?”
Which does nothing to detract from my point that what Dick wrote would apply to even the blind, and would indeed bar anyone who can’t sight-read from the legal profession, if adopted by the courts.
No it wouldn’t. There is nothing in Dick’s comment that says a person must read by sight.
No, that is not what he said at all. He didn’t say that only Ms. Bartlett should be excluded, but anyone who can’t sight read.
I am not going to argue what is so clearly stated in Olson’s article. If you cannot or will not see what is there, there is little that anyone can do.
Are you telling me he supports Bartlett’s case?
Are you telling me Martin and Bartlett are the same person? Who knew that?
Limiting their ability to do so, therefore, makes our markets freer, not less so.
There is a logical disconnect there that you are missing.
He stated that in all his years in business he never put up a wheelchair ramp, and no wheelchair-bound customer ever came to his store. It never occurred to him that maybe they never came BECAUSE he had no wheelchair ramp.
So the result is more regulation. This is your view of a “free market?” More regulation?
what are the bona fide occupational qualificatons of lawyers?
Actually it is more than that. It is “who is more qualified to set the standards of a association’s membership – the association or someone outside of the association?”
You seem to think sight reading is one of them. i don’t.
As I never said that it was about sight reading, I have no idea why you would think that I would believe such a thing.
> Are you telling me that you I should just trust your judgment on what is “bigoted?”
You don’t have to trust my judgment. All you have to be is skeptical of the FG’s utter perfection.
> There is nothing in Dick’s comment that says a person must read by sight.
He does say it is necessary to be a lawyer, and I have already quoted the passage to you, so there is no further point in discussing it if you can’t see what is in plain English before you.
> I am not going to argue what is so clearly stated in Olson’s article. If you cannot or will not see what is there, there is little that anyone can do.
Wow, cognitive dissonance is an amazing thing. You write that, literally being unable to see what I actually quoted to you.
> Are you telling me Martin and Bartlett are the same person?
No, and I don’t know where you are getting that implication.
> There is a logical disconnect there that you are missing.
Where, pray tell?
> So the result is more regulation. This is your view of a “free market?” More regulation?
I didn’t say I was 100% opposed to all regulation and I would bet that when it comes down to it, neither are you. Indeed, I specifically distinguished between cases dealing with the private sector where the ADA restricts the free market from cases like bar associations where the ADA eliminates restrictions on the market.
> Actually it is more than that. It is “who is more qualified to set the standards of a association’s membership – the association or someone outside of the association?”
Lol, so because this state agency calls itself an association, they should have free reign to close off their market, even though they are obviously self-interested actors? Would you also argue that Nintendo, Sony and Microsoft should have the right to tell, say, Panasonic that it can’t create a new video game console? Should Ford, GM and Chrysler be allowed to tell Toyota, Honda, etc. whether or not they should be allowed to sell cars? You don’t see a slight conflict of interest in people deciding whether to allow someone else to compete against them?
I mean, seriously, by your deferential logic, then the Virginia Bar could ban all black or female lawyers. Sheesh.
Seriously, who are they to tell a person who can and can’t practice in their profession? Who are they to say to a person who spent 7 years in school, at minimum, and thousands of dollars seeking a goal, that they aren’t allowed to achieve that goal?
How would you feel if you were qualified to practice in your job, but some governmental pencilneck comes in and tells you that you are not allowed, for some reason that has nothing to do with your qualifications?
> As I never said that it was about sight reading, I have no idea why you would think that I would believe such a thing.
Um, because that is the central issue of the case and you oppose Sotomayor’s decision. But hey then again as I noted above you did utterly misunderstand what the case is about, and you do have a problem recognizing what is written in black and white, so if you want to plead ignorance and slip away, feel free.