ADA week: Dark v. Curry County

One reads a lot about how a conservative judiciary has supposedly pulled the teeth of the Americans with Disabilities Act. Particularly noteworthy is a series of decisions in which the Supreme Court, faced with employment claims in which safety might be at risk (from commercial pilots with poor vision, for example), ruled against the employee’s claim and widened the effective range of employer discretion.

No doubt there is some truth to the idea that the high court’s employment decisions have curbed the ADA’s expansionary momentum. But then there are the cases like that of Dark v. Curry County, decided by the Ninth Circuit this summer. Robert Dark, an epileptic from youth, operated heavy construction equipment for the road department of an Oregon county. One morning he experienced an “aura”, a sensation which often presages a coming seizure, but did not inform anyone at the job about it when he reported for work. Later that day, he did in fact experience a seizure. An accident was avoided because a co-worker managed to seize control of the machine Dark was operating before it could do any damage.

The county terminated Dark, with emphatic language about how his medical condition prevented him from safely accomplishing his duties. A lower court agreed with the county, but a three-judge Ninth Circuit panel reinstated his suit. Its key points: the county did not adequately give consideration to reassigning Dark to light-duty positions, in particular those that it might have anticipated would “become available within a reasonable period” following his removal from the machinery job, even though the jobs were not in fact open at the time. And although the county placed considerable weight during the dispute on Dark’s misconduct in not informing his supervisors or co-workers about his indications of a possible impending seizure, it did not cite that reason at the time in dismissing Dark, instead (and more diplomatically) reciting the safety concerns of a prospective nature.

The case (available at FindLaw here in PDF format) sparked considerable discussion on the web, including Phillip J. Griego (to whom the above discussion is indebted), HRHero/M. Lee Smith, and Proskauer Rose. Robert Loblaw at Appellate Decisions writes (Jul. 6):

The ADA often places employers in a difficult position, since they have knowledge of the dangers of employing a particular individual but cannot always take steps to address those dangers. Indeed, this case is similar to last year’s Pacific Bell case, which involved a home repair technician who had spent time in a mental hospital after being found not guilty of attempted murder by reason of insanity (my coverage here). As in that case, Curry County would probably be found liable in tort if Dark injured somebody while on the job, due to its knowledge of his condition. Indeed, Curry County is even more likely to be on the hook if Dark has another seizure that results in injury, since he already had one near-miss on the job. But as far as the ADA is concerned, Curry County’s potential tort liability is simply not relevant.

And before assuming that this is just one of those wacky Ninth Circuit cases, note (as does Ross Runkel) that the author of the opinion is the highly regarded conservative jurist Diarmuid O’Scannlain. Maybe it just is an extreme law, with no judicial activism needed to get extreme results out of it.

Imams: we want to “hit [US Airways] where it hurts, the pocketbook”

Six imams (who had just attended a private conference on imams and the media and politics) were waiting for US Airways Flight 300 and decided to act rather provocatively: they shouted “Allahu Akbar!” loudly while praying in the waiting area, refused to take their assigned seats (instead squatting in the front row of first class and the exit rows—consistent with trying to control the entry and exit areas of the plane), demanded use of a seatbelt extension for the morbidly obese despite being only moderately overweight (and then placed the heavy-buckled potential weapons under their seats instead of on their seatbelts), and started speaking to one another in Arabic (which a fellow passenger translated as angry denunciations of America). They succeeded in the attempt to draw attention to themselves; the captain asked them to leave the plane, they refused, and were then arrested; the plane then underwent a 3.5-hour search for bombs.

“They should have been denied boarding and been investigated,” former air marshal Robert MacLean said. “It looks like they are trying to create public sympathy or maybe setting someone up for a lawsuit.”

Sure enough, the victimizers are now playing victim and threatening to sue under the auspices of the Muslim American Society (which was previously in the news for demanding that Muslim cab-drivers be permitted to refuse rides to passengers carrying alcohol) and the litigious Council on American-Islamic Relations (Apr. 25). The provocation, helped along by new Congressman Keith Ellison (D-Minn.), also appears to have its desired effect: “The Minneapolis airport plans to add a prayer room for Muslims, and Democrats plan to hold hearings on Muslim profiling.” (Audrey Hudson, “How the Imams Terrorized an Airliner”, Washington Times/Front Page, Nov. 29; Arizona Republic op-ed, Nov. 29; Debra Burlingame, “On a Wing and a Prayer”, Wall Street Journal, Dec. 6; LGF blog, Nov. 21; “Tale of Fibbing Imams”, Investors Business Daily, Dec. 4 via Powerline blog, Dec. 6).

By reader acclaim: guacamole labeling suit

As its label discloses, Kraft Guacamole Dip hardly deserves the name, containing less than 2 percent avocado. The strategy of “read the label” was one that Brenda Lifsey of Los Angeles elected not to follow, nor did she content herself with the backstop strategy of “ask for your purchase price back and don’t buy the product again”. Instead, she’s filed a lawsuit seeking class-action status against the giant food company. And speaking of artificial ways of making green: “Lifsey has been a plaintiff in other lawsuits against large corporations,” including Sears and Carfax, over alleged misrepresentations of their products. (Jerry Hirsch, “Lawsuit stirs up guacamole labeling controversy”, L.A. Times/Chicago Tribune, Nov. 30).

“$102,009.17 buys an awful lot of pants”

“That is how much the Long Island Rail Road and the Metro-North Railroad have paid over the last four years to customers who have torn clothing” on the armrests of their M7 trains. I’ve torn pants pockets on armrests that weren’t on M7 trains, but never thought to ask for compensation for something that was my own damn fault. I’m apparently a sucker, but at least no one is seeking to add this claim of damages to the obesity lawsuits. Yet. (William Neuman, “M.T.A. Gets Bill When Armrests Chew Up Pants”, NY Times, Dec. 6 (h/t W.F.)).)

Social hosts and mistletoe II

What I find so amusing about Dahlia Lithwick’s suggestion of a lengthy warning for Christmas parties isn’t so much the warning itself (others have done that funnier, not to mention the real-life examples), but that Lithwick doesn’t recognize that she’s part of the culture that encourages such ludicrous warnings: in 2003, Lithwick pooh-poohed as “extreme” the need for legislative intervention to prevent courts from going after food providers in obesity lawsuits because, after all, Big Food could survive by “posting warnings.”

Social hosts and mistletoe

Legal hazards of Christmas party-giving (Alan Kopit, Lawyers.com, undated recent; Dahlia Lithwick, “Fa-la-la-la-lawsuit”, Slate, Dec. 1).

P.S. And here’s a report from the U.K. claiming that many employers there are curtailing the posting of holiday decorations at workplaces from stated motives that include avoiding offense to those of other faiths and a variety of safety concerns. (Amy Iggulden, “No decorations, please, it might cause offence”, Telegraph, Dec. 6).

Disabled rights: the separatist fringe

The ideology of the “disabled movement”, at its fringe, can generate some arrestingly wrongheaded ideas. “Susannah A. Baruch and colleagues at the Genetics and Public Policy Center at Johns Hopkins University recently surveyed 190 American P.G.D. clinics, and found that 3 percent reported having intentionally used P.G.D. ‘to select an embryo for the presence of a disability.’ In other words, some parents had the painful and expensive fertility procedure for the express purpose of having children with a defective gene. It turns out that some mothers and fathers don’t view certain genetic conditions as disabilities but as a way to enter into a rich, shared culture.” (Darshak M. Sanghavi, M.D., “Wanting Babies Like Themselves, Some Parents Choose Genetic Defects”, New York Times, Dec. 5). Cathy Young writes: “The movement [“Deaf culture”] holds that there is nothing wrong with being deaf, only with how society has treated deaf people. … But it’s a leap from this understanding [that deaf persons have suffered from bias, stereotyping and unfairness] to the bizarre idea that the lack of hearing is no more a disability than being female or black. … The majority of deaf people do not belong to Deaf culture.” (syndicated/Boston Globe, Nov. 6).

Repeal Day

It’s a proposal for a new national holiday on Dec. 5 marking the end of Prohibition. (WaiterRant, Dec. 5; Jeffrey Morgenthaler, Nov. 7). Nice idea, but what makes anyone think that a nation hurtling in the opposite direction — toward bans on every unhealthy but pleasurable form of food and drink that public-health busybodies see fit to target — would even wish to pay lip service to the principles of individual liberty at stake in Repeal?

For ideas on what comes next after NYC Mayor Bloomberg’s ban on restaurant use of trans fat (PoL Dec. 5, etc.), see Michael J. Nelson, “Protecting You From You”, Dec. 5. More: “So you can’t cook with Crisco anymore? That’s crazy! Is there no respect for tradition? Of all the elitist regulations, this one takes the cake. And the pie crust.” (Althouse, Dec. 6; also Oberwetter, Mangu-Ward).