The “secret world of the ADA”: professors grading exams aren’t supposed to know whether a given test-taker got extra time as an accommodation, but there are often ways you can tell, says San Diego lawprof Gail Heriot, especially when the essay comes in twice as long as other students’. Still, when she tries to find out what percentage of her class is getting extra time — not asking for names, just a rough figure on what share — she’s told it’s “none of your business”. (The Right Coast, Jan. 10). More: Jun. 2 and Dec. 8, 2006, among many others.
Posts Tagged ‘disabled rights’
Ct.: timed test for fire captain violates ADA
Lt. David Lenotti says the fire department of Stamford, Connecticut improperly denied him extra time on its test for promotion to captain even though he had a diagnosis of learning disability. A state human rights investigator has backed Lenotti’s complaint, which is scheduled for a Jan. 23 hearing, but the Stamford authorities beg to differ:
The city has never granted anyone extra time on the lieutenant’s or captain’s exams, said Felicia Wirzbicki, human resources generalist. … The reasoning is that lieutenants and captains are in charge at emergency scenes and have to make split-second decisions, Wirzbicki and other city officials said. Those decisions often are based on floor plans, hazardous material reports and similar documents, they said. Speed is an “essential function of the job,” the city argued. … “You don’t get extra time at a fire scene,” Wirzbicki said.
None of which seems to cut much ice with disabled-rights advocates:
“You’re supposed to give accommodations, period,” said Suzanne Kitchen, a clinical instructor and consultant for the Job Accommodation Network, a federally funded non-profit that provides employers with advice on disability rights. “No is never the right answer.”
That last sound bite is actually quite false as a legal matter; in fact Ms. Kitchen herself is described elsewhere in the article as correctly noting that accommodations may sometimes be refused under the law. But it does have quite a ring to it, though, doesn’t it? (Zach Lowe, “State official: Disability rights apply on fire captain test”, Norwalk Advocate, Jan. 15). Jeff Hall at Created Things comments (Jan. 16).
All of which is very much business as usual in today’s employment discrimination law. Long before the disabled-rights suits came along, fire departments had came under intense attack by feminist litigators seeking to invalidate testing of applicants’ physical strength, agility and so forth, particularly when timed tests were involved. I wrote about this history at some length in The Excuse Factory, a few of the highlights figuring in this 1997 magazine piece. An excerpt:
[In Brunet v. Columbus] Judge Kinneary also disallowed the city’s practice of awarding credit for speed in accomplishing the dummy rescue or other simulated tasks such as hoisting equipment to upper floors (men tended to finish the tasks more quickly than women). Why? Well, Kinneary wrote, again accepting the arguments of plaintiffs’ lawyers, testimony had been given that “sometimes firefighters work all-out, and sometimes they pace themselves; it depends on the task at hand.” In other words, they hurry only sometimes, and other times save their energy because they expect to need it later. From this the judge concluded that all applicants who made it through the tasks at all deserved equal ranking. The case for preferring recruits who could work quickly was merely, he said, “anecdotal.” Yes, you read that right. It seems people have picked up this anecdotal idea that firefighters should do their job fast, maybe because they’ve heard anecdotally that fires left undoused tend to spread. Many press accounts adopted the same high-minded agnosticism about exactly what it takes to fight fires. City officials defending tests say “speed is critical” in combating blazes, reported the New York Times, in the best tradition of we-print-all-viewpoints journalism. “Opponents argue that it is not.”
Update: Which is Most Discriminatory Against Blind Consumers?
Jacob Sullum points (Dec. 19) to a New York Times op-ed piece (Dec. 19) by Marc Maurer questioning the recent decision (last mentioned here by Walter Olson on Dec. 17) holding that U.S. paper currency discriminates against blind money-users. As Sullum notes:
The piece is puzzling because Maurer is the president of the National Federation of the Blind, which is suing Target for failing to make its website easily accessible to blind people. Maurer calls the currency case, which is supported by the American Council of the Blind, ‘frivolous litigation’ while characterizing his group’s Target lawsuit as a straightforward application of the nondiscrimination principle.
Eye of the beholder, indeed.
Update: paper money design unfair to blind
The Treasury Department is appealing U.S. District Judge James Robertson’s ruling (Nov. 29) that it’s unlawful for the nation’s paper currency not to be redesigned in ways that would make it more easily used by the visually handicapped. (“Feds Say No To Blind-Friendly Paper Money”, AP/CBSNews.com, Dec. 12). The Gimp Parade (Dec. 16) rounds up lots of links on the controversy.
Web “addiction”, cont’d
Business Week is urging us all to take seriously a lawsuit by IBM employee James Pacenza of East Fishkill, N.Y., sacked for improper internet use at work. Pacenza’s attorney has filed a $5 million wrongful-termination suit and is advancing web-addiction theories/excuses for his client. Business Week quotes various sources who are eager to predict some sort of emergent legal status for internet addiction — maybe as a covered condition under the Americans with Disabilities Act — but it all still seems pretty unlikely to me. (Catherine Holahan, “Virtually Addicted”, Dec. 14). On “BlackBerry addiction”, see Oct. 2, etc.
ADA: Colleges bend to accommodation demands
Amid a rapid rise in the number of students with disability diagnoses — diagnoses of learning disability, in particular — colleges and universities “have magnified services to help those students keep pace – from personal note-takers to high-tech computer equipment that reads aloud and types research papers. … The number of college students with disabilities has grown fivefold from three decades ago, when it was estimated at 2.3 percent.” At Regis University in Colorado, the number of students receiving accommodations has jumped more than fifty percent in three years, from 240 to 370. “The number of college students diagnosed with disabilities increased dramatically after the 1990 passage of the Americans with Disabilities Act, [Regis disability services director Joie] Williams said.” About 600 students use the “Access Center” at Denver’s Metropolitan State College: its services, which by law are free to students, include uploading textbooks onto students’ iPods. (Jennifer Brown, “More colleges helping with disabilities”, Denver Post, Nov. 26). For accommodation demands at the high school level, see, e.g., this Mar. 24 post.
ADA: “The New Crips”
We’ve linked in the past to a lot of excellent investigative journalism on the disabled-rights filing mills that have blanketed whole business districts in California and elsewhere with accessibility complaints that quickly convert to cash demands. (Some examples: Carmel (Calif.) Pine Cone on Jarek Molski and Thomas Frankovich, blogger George Wallace on Jerry Dolan, CNN on George Louie, among others; and I might as well promote my own 2004 effort for City Journal). Among the most riveting of the bunch appeared this fall in Southern California’s Orange County Weekly. (R. Scott Moxley, “The New Crips”, Orange County Weekly, Oct. 13). A few highlights:
* “Lawyers familiar with [wheelchair user David Allen] Gunther’s activities estimate he’s taken more than $400,000 in the last 36 months, mostly from mom-and-pop shops in Garden Grove, Anaheim, Fountain Valley, Orange, Tustin, Buena Park, Stanton, Seal Beach, Santa Ana, Dana Point, Huntington Beach and Los Angeles. If true, that’s quite a haul for a man who has spent most of his adult life unemployed, according to records obtained by the Weekly.”
* One of the first targets of Gunther’s suits, a flower seller in Anaheim, fought back, pointing out to a judge that she was herself wheelchair-bound and that her shop had a ramp. Gunther’s suit was dismissed, with no apology; “on the day Gunther said he drove to Gibson’s flower shop, he claimed in separate legal filings that he also wanted to patronize Gibson’s neighbors: a massage parlor, a dental office and a palm reader.” He got money from the massage parlor but not from the palm reader, who like the flower seller pointed out to Gunther’s lawyer that he did indeed have a ramp.
* “A Weekly investigation traced Gunther’s activities around the western U.S. during the last quarter of a century, uncovering evidence that not only has he exaggerated his reliance on a wheelchair, but he’s also whitewashed his own history of chronic unemployment, multiple drug addictions, narcotics trafficking, assaults, petty thefts, burglaries, a decade of missed child support payments, and more than a dozen arrests and stints in jail.”
* Gunther’s lawyer is none other than longtime Overlawyered favorite Morse Mehrban, (Nov. 4-5, 2002, Mar. 12, 2004, Jul. 9, 2004). Faced “with a discovery demand for the details of Gunther’s ADA settlements, Mehrban resisted for weeks, arguing that the information was ‘confidential and proprietary.’ Said Mehrban, ‘There is nothing to be gained by examination of the documents.’ Eventually, he told a judge that the issue was moot. He routinely destroys all Gunther’s paper records and erases the memories of his office computers, he said.”
* Nor is it possible for members of the outside public or media to attend the monthly meetings of Equal Access Now, a group Gunther has set up to promote access complaints. “‘Sorry, it’s private,’ said Gunther. ‘I teach disabled people about their rights.’” Gunther often files actions in concert with three other wheelchair users, each of whom claims the $4,000 per violation entitlement.
* After ending a client relationship with his own former lawyer, Gunther sued, claiming the lawyer’s bathroom was unaccessible. The lawyer’s staff said that Gunther not only had used the bathroom without incident but that he had in fact comfortably walked into and out of the office on repeated visits.
* At a meeting of some of Gunther’s victims in Santa Ana, “Jin Kim, owner of a barbecue restaurant at 17th Street and Grand Avenue, cried. He recounted the shock of getting the lawsuit without warning, how Mehrban had coldly refused to negotiate despite pleas, and that he had to sell his wife’s ring and a vehicle to pay Gunther $16,000—and his own attorney another $4,000 in fees. His crime? His restroom mirror was allegedly mounted a few inches too high and the door was a few pounds too heavy to push.”
* And his lawyer’s own offices? As it happens, they’re up a steep flight of steps in Koreatown: “Mehrban says it would not be practical to make his office accessible to the handicapped.”
The whole article, again, is here. Note that the California legislature has shown no discernible interest in amending the Unruh Act so as to curb this kind of entrepreneurial activity. Note also that the “ADA Notification Act”, a proposal in Washington aimed at curtailing cognate abuses based on the federal ADA, was unable to attain any serious traction even in the supposedly pro-business Republican Congress now drawing to its close.
P.S. Gunther’s activities also figured in the notable and recently decided case of Gunther v. Lin, discussed by Ted Dec. 1.
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.
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).
ADA: sidewalks still not clear
Ramps and other aids to sidewalk and crosswalk accessibility having been one of the earliest and most successful demands of the modern disabled-rights movement, you might assume that the litigation and expense arising from the changeover was by now mostly a thing of the past. Not so, according to a Los Angeles Times piece last month. In California, plenty of legal action is in progress against cash-strapped municipalities, which say they can’t afford to comply. “The estimated cost in California alone is $2.5 billion. ‘The cost of retrofitting is phenomenal,’ said Gregory Hurley, a Costa Mesa attorney who has represented local governments. ‘Where is the money going to come from?'” The accommodations “include wheelchair ramps at curbs, level pavement, gently sloping driveways, minimum clearances for wheelchairs and crosswalk warnings for the vision-impaired.” (Dan Weikel, “Getting there is none of the fun”. Los Angeles Times, Nov. 13).