Client protection be damned: “Asking would-be lawyers standard questions about their mental health, including their history of diagnosis and treatment, could violate the Americans with Disabilities Act, according to the civil rights division of the U.S. Department of Justice.” [ABA Journal]
Posts Tagged ‘disabled rights’
Disabled rights roundup
- “US Airways has agreed to pay $1.2 million in fines because it provided inadequate wheelchair service at the Charlotte and Philadelphia airports” [Charlotte Observer, USA Today; on abuses of the right to request wheelchair service at airports, see links in our post last May] Support animals on airplanes, cont’d [NYT]
- In New York, indefinite leave of absence may be deemed a reasonable accommodation that employer is obliged to grant [Erin McPhail Wetty, Seyfarth] Per Second Circuit in NYC case, timely attendance not essential job function [Mark Kittaka, Barnes & Thornburg]
- US disability rate fell 25 percent between 1977-87, then more than doubled [Tad DeHaven, Cato via Bryan Caplan] Has a Kentucky attorney found holes in the SSDI system? [Jillian Kay Melchior]
- Per EEOC, employer may be obliged to grant employee’s request to work from home as reasonable accommodation [Johanna Wise, Seyfarth]
- Lawprof suspended for allegedly yelling at subordinates sues under ADA [Althouse, Above the Law]
- “None of the people who complained had even been into the store” [San Diego Reader]
- And yet more from EEOC: employer “integrity testing” meant to assess applicants’ honesty, trustworthiness and dependability can run afoul of disabled-rights law [link]
Vancouver bans doorknobs
In the name of so-called universal design — a much-promoted theory that disabled-accessibility features should be designed into all structures, public or private, from the start — Vancouver is adopting building code changes that prohibit use of doorknobs in favor of levers and other mechanisms that are more easily used by the handicapped and elderly. While the ban will apply only to new construction, the city has already deferred to the new thinking by replacing the ornate doorknobs in its Art Deco-era City Hall. Building experts see doorknob bans in private housing construction as likely to spread in the years ahead. [Vancouver Sun] Perennial Overlawyered bete noire Rep. Jan Schakowsky (D-Ill.) has in recent Congresses introduced something called the Inclusive Home Design Act which would mandate some accessibility features in all federally assisted newly constructed housing units.
More: “Vancouver Banned Doorknobs. Good,” writes Colin Lecher at Popular Science. Because the less diversity and private choice and historical continuity, the better.
Unfair to the hearing?
Federal officials at HUD are making life difficult for a popular Arizona housing complex that specializes in serving hearing-impaired residents because they say it is failing to attract and serve non-hearing-impaired persons. [Arizona Republic]
If you’re anxious about being fired, you might be disabled just by that
An agreeably circular road to ADA coverage, via a case from federal court in South Dakota: my new post at Cato.
Employer knew of Navy Yard shooter’s mental instability
This fairly gripping New York Times account by reporter Serge Kovaleski gives the backstory of the horrendous Navy Yard massacre — a contract employee with a security clearance had been displaying increasingly florid symptoms of paranoid schizophrenia, yet was not taken off his job — but is missing one angle I was curious about:
On Aug. 9, the director of human resources for the Experts spoke to Mr. Alexis’ mother, who told the director of his previous paranoid behavior, the person with knowledge of the investigation said. His mother told the director that Mr. Alexis’ paranoia tended to subside with time, but that “he likely needed to see a therapist.”
That same day, the director convened a meeting of “senior-level personnel” at the Experts who concluded that he could be sent back to work. The Hewlett-Packard investigation found that the Experts did not attempt to get Mr. Alexis to seek mental health care, a finding that the Experts has not disputed.
…In an e-mail message, the Experts said that a Hewlett-Packard manager in Newport said she was “comfortable” having Mr. Alexis come back to work after he reported hearing voices.
Hewlett-Packard said its manager in Newport was a low-level employee who was not given full details by the Experts about Mr. Alexis’ problems. The company said it has placed that manager on administrative leave.
The missing angle is: what if any role was played by the legal constraints on the various entities that directly or indirectly employed Mr. Alexis? Severe mental illness is a protected condition under the ADA, and employers may not be free to take workers off their duties unless and until they can assemble evidence that would stand up in court documenting a “direct threat,” “undue hardship” or other adequate reason for removal; the law places limits on the employer’s right to demand medical exams to evaluate the exact contours of disability; and privacy rules limit sharing of medically relevant information between different entities, as we saw in the Seung-Hui Cho/Virginia Tech case. All these rules apply to ordinary larger private businesses, but some come in especially stringent form when applied to federal contractors.
Did any of these legal doctrines influence the course of decision-making by which Mr. Alexis received oddly hands-off treatment even as his mental state spun out of control? One hopes a future NYT article will return to take a look at those questions.
Wednesday hearing on OFCCP disabled, veterans quotas
Rep. Tim Walberg (R-Mich.) of the House Education and the Workforce Committee will be inquiring into the new “benchmarks” that federal contractors will be required to adopt. Julian Hattem at The Hill has more details, and quotes me:
“They have the power to be intrusive and expensive to contractors that they believe are not playing ball on this,” said Walter Olson, a senior fellow at the Cato Institute. “If the initiative means anything, it means that they are signaling to ‘Please be one of the ones that we think is trying to make these benchmarks, because if we think that you’re one of the ones we think are not trying to make the benchmarks, you will be hearing from us.’”
Earlier here, here and here. As I observed back in February:
To achieve the [7 percent disabled goal], employers will need to hope that large numbers of new hires will turn out to have less visible disabilities, such as back problems, diabetes or (perhaps most useful because most subjectively defined) the array of mental, emotional and behavioral issues that are the most dynamically expansive disability category of all, and which can range from neurosis to learning disability to oppositional defiant disorder to drug and alcohol abuse (if in rehab).
Trouble is, it’s illegal under the ADA for employers to ask job applicants whether they’re disabled, even if the question is offered with favorable intent. So the rules contemplate a fan dance of “invited self-identification” in which workers are given repeated chances at successive stages of the hiring process to announce that they are disabled. Unfortunately for quota compliance, even after getting the job an employee may be too shy to offer such a self-identification, which means the employer may lose any “credit” for the hire. Perhaps equally frustrating, an employee hired with the quota in mind may turn out not to have any disability at all (“Dang it! And she looked so disabled!”).
Overtime for live-in health companions, cont’d
Caleb Brown interviews me for a Cato podcast on the Administration’s new home-companion overtime rules, which could drive many elderly and disabled persons into nursing homes. Earlier here and here.
Disabled rights roundup
- A rein on line-jumping by disabled tour guides? Walt Disney World changes ride admission policy [WKMG Orlando, earlier here and here]
- Every body into the ADA: Michael Stein, Anita Silvers, Brad Areheart, and Leslie Francis in U. Chi. Law Review are latest to propose “universal” right to accommodation [Bagenstos]
- Speaking of which, everyone interested in disability law should be following Prof. Sam Bagenstos’s Disability Law Blog, the ultimate source of many articles linked in this space. I’m honored that Prof. Bagenstos has invited me to speak to his disabilities law class today at the University of Michigan (sorry, it’s not a public event), all the more so since we regularly square off on opposite sides of these issues;
- “First ADA suit since AMA’s obesity policy: Is this the start of something big?” [HR Morning via Eric B. Meyer]
- “Disability Groups Defend California’s LSAT Anti-Flagging Law” [Karen Sloan, NLJ]
- “Student Sues Kaplan For Not Providing Sign Language Interpreter” [Florida Daily Business Review] Another movie theater captioning suit [Connecticut Law Tribune]
- Rep. Tammy Duckworth vs. putative set-aside “disabled vet”: “I’m sorry that twisting your ankle in [prep] school has now come back to hurt you in such a painful way” [Daily Caller]
- From the rumor mill: Senate Foreign Relations Committee may hold hearings next month on ratification of Convention on the Rights of Persons with Disabilities, much criticized in this space; here’s a pro-ratification Facebook group and a John Kerry op-ed to the same effect.
- From historic Julian, Calif. to Philadelphia, we all pay price of ADA’s coercive utopianism [Mario Loyola and Richard Epstein, The American Interest]
Hans Bader on disabled-hiring quotas
Building on my post of yesterday, Competitive Enterprise Institute scholar Hans Bader makes several additional points about the Department of Labor’s new hiring quotas for disabled workers at federal contractors:
- Under the regulations, Bader points out, contractors will be obliged to aim for a seven percent quota for each division, a significantly harder task than if it were just a company-wide quota.
- Dodgy terminology to conceal the reality of quotas is nothing new; in fact, there’s a long history of federal officials’ resorting to euphemism and vagueness to characterize quotas as benchmarks, goals, and so forth.
- While disabled quotas, unlike racial quotas, do not raise immediate red flags of unconstitutionality, there is serious doubt as to whether they are actually a lawful application of the statutes Congress has passed in this area. While one such law does refer vaguely to affirmative action for the disabled, that does not necessarily provide a broad enough basis to authorize the new scheme.
- Will compliance and paperwork on this and a related veteran-quota measure cost federal contractors $6 billion a year, as the Associated General Contractors of America has it? Or less than one-fifth that sum, as OFCCP insists? And does OFCCP face even the slightest consequences if its estimates turn out to be low-balls and the contractors turn out to be right?
[cross-posted, with adaptations, at Cato at Liberty. Edited final paragraph 9/23 to clarify that two quota programs are involved]