ZipCar and FlexCar are violating the Americans with Disabilities Act by not providing special hand controls for disabled drivers, according to a lawsuit which also names the District of Columbia as a defendant because it provides parking spaces to the popular car-sharing services. (Hank Silverberg, “Disabled Woman Files Lawsuit Against Car-Sharing Services”, WTOP, Oct. 11).
Posts Tagged ‘disabled rights’
National Federation of the Blind v. Target
I’ll be on the BBC World Service today to discuss (more).
Blind shoppers can sue Target over its website
In a major victory for disabled-rights activists, federal judge Marilyn Hall Patel has ruled that the National Federation of the Blind can go to trial against the Target Corp. on charges that its online shopping website should be redesigned to make it easier for blind computer users to use. (Bloomberg, Reuters).
We’ve covered the Target suit Feb. 8 (with enormous reader discussion), Oct. 4 and Oct. 27 of last year. Existing federal court precedent, in the Southwest Airlines case, discourages the most far-reaching demands for web “accessibility”; the Target case, which is being heard before a judge who’s considered relatively liberal, is important because disabled-rights activists hope to use it to counter and eventually reverse the Southwest precedent (see Jan. 8, 2004). For reasons why a victory by the activists might lead to unprecedented infringements on the freedom to conduct business or even publish online, see my May 2000 Reason column and my House testimony of earlier that year, and earlier posts on this site (& welcome Michelle Malkin readers).
ADA lawsuit closes kids’ basketball camp
In Rancho Cordova, Calif., a 50,000-square-foot kids’ indoor sports complex has closed operations following a lawsuit over its lack of wheelchair access. A financial angel, however, has offered to donate a $35,000 lift for free, and Basketball Town’s executive director is cautiously optimistic, saying there is a 50/50 hope that it might reopen. “The original lawsuit was filed by a Solano County man who is a quadriplegic. He says he was unable to attend his nephew’s birthday party on the mezzanine floor last year. Since then, the building’s owner and the tenants who run Basketball Town have clashed over who should pay for the retrofitting.” Derrick Ross of Suisun City has “filed similar lawsuits against two Northern California businesses in the last two years over Americans with Disabilities Act compliance issues.” (Stan Oklobdzija, “Sports complex to close”, Sacramento Bee, Sept. 30; Dave Marquis, “Basketball Town’s Future in the Air”, Oct. 1; Chuck Shepherd’s News of the Weird Daily).
Suspended NFL players file disabled-rights claims
Middle linebacker Odell Thurman of the Cincinnati Bengals and Tampa Bay Bucs cornerback Torrie Cox, both suspended for repeat violations of the National Football League’s substance abuse policy, filed complaints with the Equal Employment Opportunity Commission alleging discrimination on the basis of being regarded as disabled, with alcoholism being the disability. The Americans with Disabilities Act has been construed to prohibit discrimination against rehabilitated alcoholics, but not to protect current substance abuse. However, the line distinguishing behavior regarded as current from that regarded as past can be hazy. (Len Pasquarelli, “Bengals’ Thurman, Bucs’ Cox file discrimination claims against NFL”, ESPN.com, Aug. 17). Paul Secunda discusses at Workplace Law Prof (Aug. 23).
“Richardson: Obese Americans Need Federal Protection”
“Democratic presidential candidate Bill Richardson called Wednesday for obese Americans to be brought under the protection of the Americans for Disabilities Act. ‘This is an issue of basic civil rights,’ said Richardson. ‘There are no federal laws that protect obese Americans from discrimination in the workplace, school, or anywhere else. This must change.'” (ABCNews.com “Political Radar”, Sept. 19). We’ve covered obesity-discrimination claims in such contexts as housing accommodation, the hiring of aerobics instructors, amusement park ride seating, airline seat widths (here, here, and here), and the rights of out-of-shape loading-dock workers. P.S. Forgot to add skinny fashion models.
Ninth Circuit: Molski “Plainly lied”
We’ve been covering the exploits of professional ADA plaintiff Jarek Molski and his lawyer Thomas Frankovich for a long time now (See Aug. 3, Mar. 23, many others). When last we checked, Molski/Frankovich were appealing a federal judge’s finding in Molski v. Evergreen Dynasty Corp. that they were vexatious litigants; the designation meant that they couldn’t file any more ADA lawsuits in the Central District of California without first getting permission from the court.
Last week, the Ninth Circuit issued an opinion (PDF) which upheld the finding in its entirety. The only quirky part of the case was that it was likely that many of the establishments sued by Molski/Frankovich at least technically probably had violated the ADA by not complying with its vague, onerous requirements. But the Ninth Circuit had no problem getting beyond that:
Frivolous litigation is not limited to cases in which a legal claim is entirely without merit. It is also frivolous for a claimant who has some measure of a legitimate claim to make false factual assertions. Just as bringing a completely baseless claim is frivolous, so too a person with a measured legitimate claim may cross the line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.
And for some reason, neither the District Court nor the Ninth Circuit were impressed with Molski’s factual assertions:
However, it is very unlikely that Molski suffered the same injuries, often multiple times in one day, performing the same activities—transferring himself from his wheelchair to the toilet or negotiating accessibility obstacles. Common sense dictates that Molski would have figured out some way to avoid repetitive injury-causing activity; even a young child who touches a hot stove quickly learns to avoid pain by not repeating the conduct.
The Ninth Circuit was not any more complimentary towards Frankovich:
When a client stumbles so far off the trail, we naturally should wonder whether the attorney for the client gave inadequate or improper advice.
The court also found significant that Frankovich may well have broken legal ethics rules by trying to intimidate defendants into settling without hiring lawyers and giving them (bad) legal advice.
This isn’t necessarily the end for Molski/Frankovich. The vexatious litigant order applies only to the federal courts — in fact, only the federal courts in the Central District of California — and does not prevent them from filing suit; it only requires them to seek permission of the court first.
Yet more on privacy/disability laws and Seung Hui Cho
Perils of privacy laws, as discussed earlier here, here, here and here:
Fairfax County school officials determined that Seung Hui Cho suffered from an anxiety disorder so severe that they put him in special education and devised a plan to help, according to sources familiar with his history, but Virginia Tech was never told of the problem.
The disorder made Cho unable to speak in social settings and was deemed an emotional disability, the sources said. When he stopped getting the help that Fairfax was providing, Cho became even more isolated and suffered severe ridicule during his four years at Virginia Tech, experts suggested. In his senior year, Cho killed 32 students and faculty members and himself in the deadliest shooting by an individual in U.S. history….
Professors and school administrators at Virginia Tech could not have known of Cho’s emotional disability — Fairfax officials were forbidden from telling them. Federal privacy and disability laws prohibit high schools from sharing with colleges private information such as a student’s special education coding or disability, according to high school and college guidance and admissions officials. Those laws also prohibit colleges from asking for such information.
The only way Virginia Tech officials would have known about Cho’s anxiety and selective mutism would have been if Cho or his parents told them about it and asked for accommodations to help him, as he had received in Fairfax….
Although the only way college officials could have known about Cho’s problem would have been from Cho, experts said that asking for help is an almost impossible task for someone with selective mutism.
(Brigid Schulte and Tim Craig, “Unknown to Va. Tech, Cho Had a Disorder”, Washington Post, Aug. 27). More: Hans Bader at CEI’s Open Market (Aug. 27).
California ADA lawsuit mills: “Wheelchairs of fortune”
Serial ADA litigant (and Overlawyered repeat offender) Thomas Frankovich was profiled recently in SF Weekly. Overlawyered readers will be familiar with just about everything in there, from Frankovich’s extortionate tactics to his collaboration with professional plaintiffs like Jarek Molski, to his use of front groups in an attempt to make his litigiousness seem like a public service. (Frankovich, incidentally, does not work in a wheelchair accessible office.)
Matthew Hirsch of LegalPad reports that Frankovich is attempting to rehabilitate his image before the Ninth Circuit rules on whether he, and his fellow traveler Molski, are vexatious litigants:
Starting this month, Frankovich and a major client are offering defendants a deal: “You make your [entrance] doorway accessible, and we will waive any and all claims — including money damages,” he said.
Yes, but Frankovich is a lawyer, so be sure to read the fine print:
Frankovich said his clients who are affiliated with DREES will offer the front door deal if they are visiting only to check out the entrance. But if they spot a door that wheelchair users can’t open, then they go inside to shop and notice more problems, “that becomes something different,” Frankovich said, and the deal is off.
“Violent and profane” workplace outburst protected
Applying Washington state disability-rights law, the Ninth Circuit has ruled that an employee’s “violent and profane” outburst to supervisors may be a protected manifestation of her bipolar disorder and thus not grounds for termination. Although the court cautioned that not all disability-induced misconduct should be seen as protected, it ruled that the law protects “manifestations” of a mental or physical disability just as it protects the disability itself (Gambini v. Total Renal Care, opinion in PDF format; HR.BLR.com, Jun. 11; Workplace Law Prof, Jun. 15). For more on the Ninth Circuit and disabled-rights law, including some misconduct cases, see Oct. 7 and Oct. 14, 2003; Oct. 12 and Dec. 6, 2006, Mar. 23, 2007. For a contrasting Massachusetts case, see Jun. 28, 2006.