37-year-old grocery worker David Warnes took a donut from an Entenmann’s box, ate half of it, and returned the other half to the box on the shelf. The Giant Eagle supermarket fired him — and bought itself a lawsuit. Mr. Warnes has Down Syndrome and, his mother explains, “impulsively” ate the doughnut without understanding the consequences of his actions. Somehow, this case got to a jury, which ruled in Mr. Warnes’s favor; the supermarket reached a settlement rather than risk punitive damages. “The lawsuit sought damages for lost wages, reimbursement for the difficulty Warnes would have in finding another job, emotional distress, embarrassment and humiliation.” “Warnes’ attorney, Timothy O’Brien, said his client was ‘very happy’ with the jury’s decision.” “‘He was pleased,’ said his mother, Carol. ‘[But] he doesn’t really comprehend the legal system.'” That makes two of us, at least in this case. (Torsten Ove, “Giant Eagle reaches settlement with former employee”, Pittsburgh Post-Gazette, Mar. 6; Robert Baird, “Grocery worker wins lawsuit”, Pittsburgh Tribune-Review, Mar. 5).
Posts Tagged ‘disabled rights’
ADA filing mills: coming to your town next?
I’ve just published, in the new City Journal, an article on the thriving industry of filing disabled-accessibility complaints against unsuspecting businesses and building owners which are then traded in for hard cash, often couched as legal fees, payable to the organizers of the complaints. Established disabled-rights groups mostly say they’re dismayed by the practice, which doesn’t mean they necessarily support any steps that would stop it. (Walter K. Olson, “The ADA Shakedown Racket”, City Journal, Winter). For earlier coverage of the issue on this site, see Aug. 12, this group of links, and our disabled-rights page generally.
Web accessibility: still waiting for a case
In October 2002 a federal judge ruled against a claim that Southwest Airlines had violated federal law by failing to make its web site fully accessible to disabled internet users; the judge said a Web site isn’t a “place of public accommodation” covered by the Americans with Disabilities Act because it isn’t a “place” at all. In large part because of that ruling, there hasn’t been the rush that many of us expected to file ADA complaints against online publications and e-commerce providers. But the National Council on Disability, a federal agency, put out a position paper last summer (Jul. 10) aimed at renewing the push to get ADA applied to the Web. And disability rights activists, who are conceding nothing, hope to re-litigate the issue. “‘The Southwest Airlines ruling has set back the process of trying to get Internet sites covered by the ADA,’ said Curtis Chong, who heads the computer science division of the National Federation of the Blind. ‘But one of these days we’ll find a better place to file a better suit and maybe try and get it taken care of.'” If that ever happens, all hell is likely to break out in the online world. (Mark Thompson, “Courts Yet to Make Definitive Ruling on Online Access for the Disabled”, Online Journalism Review, Dec. 10). In its update the magazine quotes at considerable length what I told a Congressional panel in Feb. 2000 (and even runs my picture). Update Feb. 8, 2006: NFB sues retailer Target under California state law.
Yet more from the publicity file
Your editor was recently quoted in Reason (Brandon Turner, “Citings: Snow Job”, Jan., not online), where he predicted (in an interview conducted this fall) that the U.S. Supreme Court would overturn the Ninth Circuit’s decision in Hernandez v. Hughes Missile Systems, the ADA right-to-return-after-drug-misconduct case. (How accurate was this prediction? See Dec. 13). I also contributed a quote this fall when the New York Times took a look at New Jersey’s office charged with cracking down on unethical attorneys, which it’s fair to say has its hands full (John Sullivan, “In New Jersey, Rogue Lawyers Are on the Rise”, New York Times, New Jersey edition, Oct. 19, not online). And the Minneapolis Star-Tribune, covering local attorney Elliot Rothenberg’s challenge to a rule requiring all Minnesota attorneys to enroll in “elimination of bias” classes, mentions this website and our description of the program as “compulsory chapel” (see Nov. 21) (“Attorney challenging state requirement of anti-bias classes for lawyers” Jan. 2).
Back in October, we were quoted by Legal Times’s Jonathan Groner in an interesting piece on a little-publicized crusade by “public interest” lawyers to extend the constitutional right to taxpayer-provided counsel, ushered in with Gideon v. Wainwright for persons facing criminal prosecution, to civil matters such as child custody fights (“On a Crusade for a ‘Civil Gideon'”, Legal Times, Oct. 20). The idea, quietly promoted by the Soros-backed Public Justice Center and by NYU Law’s Brennan Center, is far-reaching and actually quite scary in its implications. See George Liebmann, “‘Civil Gideon’: An idea whose time has passed”, Daily Record, Jul. 18, reprinted at Calvert Institute site. Advocates were hoping to convince the Maryland high court to embrace civil Gideon, in what would have been the first such ruling in the nation, but this month the court dodged the issue in ruling on the case, Frase v. Barnhart. (Ann W. Parks, “Top court sidesteps ‘Civil Gideon’ issue, strikes down custody conditions”, Daily Record, Dec. 12; Jonathan Groner, “Inadmissible — No ‘Civil Gideon’ — for Now”, Legal Times, Dec. 15).
Canada: curling accommodation demanded
A Winnipeg man with a bad knee has filed a human rights complaint challenging the refusal of curling authorities to permit him to use a “delivery stick” in competitions that would permit him to throw rocks without bending his knees. The devices have become popular among elderly and disabled curlers, but the Canadian and World curling associations (yes, there turns out to be curling outside Canada) have banned it as giving an unfair advantage, much as golf authorities in the U.S. tried to ban the use of golf carts as a substitute for walking until Casey Martin’s victorious Supreme Court challenge. (“New rule discriminates, says curler”, CBC, Dec. 10)(more on disabled-rights demands in sports competition)
Update: disabled-rights rulings
On Dec. 2 the U.S. Supreme Court handed down a unanimous (7-0, two members not voting) decision in the much-watched Americans with Disabilities Act case of Hernandez v. Hughes Missile Systems (see Oct. 14, Oct. 7, Sept. 16-17, 2002. It held that notwithstanding the ADA’s protection of rehabilitated drug users, an employer is not obliged to rehire such drug users when it is following an otherwise neutral rule prohibiting the rehiring of former employees terminated for misconduct, provided it is not invoking such a rule as a mere pretext. The decision was widely reported as a straight-out victory for employers (see, for example, “US court rules for company on drug-use disability”, Reuters/Forbes, Dec. 2) but a closer look suggests a more complicated picture, with the door still open for legal attacks on many seemingly neutral employment rules (“Supreme Court Says No-Rehire Policy Is Not Discriminatory Practice Under ADA”, BNA, Dec. 8; “Supreme Court Dodges Question Whether Rehire Policy Barring Former Drug User Violates Disability Law”, Jackson Lewis, Dec. 3).
On the other coast, disabled-rights litigators suffered a significant setback last month that has been little noted in the national press, when a Bay Area judge rejected an suit attempting to hold the clothing discounter Mervyn’s liable for maintaining merchandise displays too crowded for wheelchair users to navigate. In his decision, Alameda Superior Court Judge Henry Needham “wrote that fixing Mervyn’s California stores to make all aisles conform with a 32-inch clearance for wheelchairs would cost the company $70 million in lost annual sales and $30 million in lost profits, according to the company’s estimates.” This exceeds the scope of “reasonable” accommodation, the judge ruled (Melanie Payne, “Judge backs Mervyn’s in disability suit”, Sacramento Bee, Nov. 5). Disabled-rights litigators had made wide-aisle mandates an important priority in lawsuits and protests: see Aug. 23 and links from there.
Obesity-as-disability and housing accommodation
Airline and theater seats, equipment in doctors’ offices, and now, inevitably, housing: “Carmen Bowen, 44, has been involved in a two-year dispute with the Cuyahoga Metropolitan Housing Authority over how much work must be done to help her move around her [Cleveland, Ohio] apartment.” Ms. Bowen weighs 772 pounds and the agency has already agreed to an extensive menu of apartment renovations that it believes go beyond what the federal ADA requires: “The modifications include removing doors and walls, installing an automatic door operator and panic device, demolishing the existing bathroom and installing a special shower, and putting in a sidewalk to the front door.” However, “Bowen filed a discrimination complaint, saying the agency took too long. … In August, 22 firefighters and emergency medical technicians worked for 2 1/2 hours to move Bowen from her apartment so she could have dental work.” (“Housing agency works to accommodate 772-pound tenant”, AP/Akron Beacon Journal, Nov. 17).
Update: College Board resists test-accommodation tide
The College Board finally appears to be halting its years-long slide toward offering extra time and other accommodations to an ever-growing number of test-taking students claiming learning disability (see our earlier coverage going back to Feb. 1999). The last straw came when litigation pressure forced testers to abandon the practice of “flagging” scores on tests taken with accommodations (see Jul. 22-23, 2002 and links from there). Searching for a way to prevent a new flood tide of requests, the Board instituted “a new requirement that students seeking extra time must generally have a diagnosis and a plan for accommodations in school at least four months before taking the SAT.” In addition, it compiled a list of 142 schools which had accounted for a greatly disproportionate share of accommodations requests — a list including many highly affluent public and private schools — and asked those schools to supply greater documentation for the requests. “Faced with such scrutiny, many of the schools that had asked for the most accommodations have pulled back substantially on their requests.” The number of parental appeals has also tripled, suggesting that the Board may need to hire more lawyers than ever (and nervously hope for favorable treatment in the courts) if it wants to make the new harder line stick. (Tamar Lewin, “Change in SAT Procedure Echoes in Disability Realm”, New York Times, Nov. 8).
ADA v. stadium seating, cont’d
Whoops! It turns out the design of many modern American movie theaters may be illegal, after all. In a big victory for disabled-rights advocates, backed by the U.S. Department of Justice, a Sixth Circuit panel has ruled that under the Americans with Disabilities Act (ADA) Cinemark Theaters cannot argue that it is enough to offer wheelchair-using patrons unobstructed views of the screen in its stadium-style theaters; instead they must be offered “comparable”, i.e. comparably desirable views. (opinion, Nov. 6). For our earlier coverage of this controversy, see Apr. 25-26, 2000; Sept. 5, 2002; Jan. 30, 2003. Update Aug. 1, 2004: Supreme Court declines to resolve issue.
Dollywood ditches disabled discounts
More presumably unintended consequences of ADA litigation: “Dolly Parton’s theme park is stopping its free-entry policy for guests with certain disabilities. Dollywood, Tennessee’s top tourist attraction, said it was responding to a lawsuit by a local woman claiming its discretionary discounts for impaired visitors violated the Americans with Disabilities Act.” For many years the park waived its $40 admission fee for patrons who are blind, deaf or use a wheelchair, but “those discounts will end Jan. 1 on the advice of lawyers. … ‘From a legal standpoint, our staff is not qualified to make decisions on who should or should not be given free admission to the park based on their level of disability,’ the park said on its Web page.” (“Dollywood to end free admission for disabled”, AP/Knoxville News Sentinel, Oct. 30).