“You may think it’s prudent to keep anyone prone to substance abuse away from large, shiny objects that go boom. You might laugh out loud at someone who insists that a firing offense may not be taken into account when he asks to be rehired. But you are not a judge on the 9th Circuit Court of Appeals. … the fact that Hernandez’s claim could be upheld by a federal appeals court indicates just how far the ADA went in accommodating people who prefer not to take responsibility for their own actions.” Steve Chapman on the ADA right-to-return-after-misconduct case currently before the Supreme Court (see Oct. 7, Sept. 16-17, 2002) (“Making a drug ‘disability’ an asset”, Chicago Tribune, Oct. 12). Update Dec. 13: Supreme Court rules.
Posts Tagged ‘disabled rights’
Supreme Court to review ADA misconduct case
The U.S. Supreme Court has agreed to decide whether Hughes Missile Systems violated the Americans with Disabilities Act when it enforced an otherwise neutral policy against rehiring workers terminated for violations of its misconduct rules, even though one consequence was to deny a second chance for an employee terminated for past drug abuse, a protected disability. (Warren Richey, “Limits of disability act tested”, Christian Science Monitor, Oct. 8). See Sept. 16-17, 2002 for our earlier take on the case. More: Dahlia Lithwick, “Junkie Justice”, Slate, Oct. 8; Tony Mauro, “Supreme Court Weighs Workplace Rights for Ex-Substance Abusers”, Legal Times, Oct. 9. Update Dec. 13: Supreme Court rules.
Latest ADA filing mill
It’s in Philadelphia, and the Inquirer does a good job of exposing its workings (L. Stuart Ditzen, “Business owners call flood of disability suits an ambush”, Aug. 31) (see Aug. 12 (Calif.) and earlier coverage).
Access suit closes landmark Calif. eatery
On Lock Sam, a beloved 105-year-old Chinese restaurant in Stockton, Calif., has closed rather than fight a suit filed by a wheelchair-using visitor who says he was humiliated and soiled himself after finding himself unable to use the restaurant’s bathroom. The restaurant owners said 32 employees would be laid off. The customer, Charles Hager, hired Oakland attorney Paul Rein to file a lawsuit demanding triple damages plus attorney fees under state discrimination law. (Jason Williams, “One last trip to On Lock Sam”, Stockton Record, Aug. 18; Michael Fitzgerald and Bruce Spence, “Eatery to close after 105 years”, Jul. 30; Michael Fitzgerald, “Talk before filing that lawsuit”, Jul. 30). The closing prompted an outpouring of discussion, much of it critical of the lawsuit, by Stockton residents (letters, Stockton Record, Aug. 9) including longtime patrons of the restaurant who themselves use wheelchairs or are otherwise disabled (Aug. 18 story, see comments of Fred Hess and Mary Gildner).
Update: a wide-aisle mandate?
Trial is now underway in Oakland in Disability Rights Advocates’ suit against the Mervyn’s discount clothing chain, charging that it is unlawful for racks and displays of merchandise to be placed so close together in the stores that persons in wheelchairs cannot navigate without assistance (see Aug. 12; also Jun. 29-Jul. 2, 2001). The chain has estimated that it would face losses of $40 million a year if it had to uncrowd its merchandise displays by providing a minimum of 32 inches between aisles as is being demanded, with losses particularly severe at peak shopping times such as the Christmas season. Macy’s and Robinson’s-May’s, which operate generally higher-priced retail stores in California, have already capitulated to DRA lawsuits demanding 32-inch aisles. (“Mervyn’s defends aisle size”. San Francisco Chronicle, Aug. 22). Update Dec. 13: store wins.
“Senioritis” victim sues for college admission
Hillsborough, N.C.: “A Guilford County high school graduate who recorded a perfect SAT score is suing UNC Chapel Hill, alleging the school refused to admit him after his grade point average dropped. Mark Edmonson, a National Merit Scholarship finalist, scored a perfect 1,600 on his SAT last year, but his grade point average fell from 3.8 to 3.5 in his senior year at Northwest Guilford High School. … ‘His senior year grades are C’s, D’s and F’s,’ Ziko said [Thomas Ziko, a lawyer for the state].” (“Student who aced SAT sues UNC for denying entry”, Charlotte Observer, Aug. 20). An earlier acceptance letter from UNC had said, “We expect you to continue to achieve at the same level that enabled us to provide this offer of admission”. Edmonson’s family is beginning to talk about how the university didn’t sufficiently take into account the consequences of his having a disability, attention-deficit disorder (Eric Ferreri, “UNC admission rescission sparks suit”, Durham Herald-Sun, Aug. 19) (via “Begging to Differ”, Aug. 21; Kimberly Swygert at No. 2 Pencil also comments (Aug. 21)).
Meanwhile, as Joanne Jacobs notes, “Blair Hornstine, who sued her school district for $2.7 million for trying to name a co-valedictorian, has settled for $60,000, reports the Philadelphia Inquirer. She’ll get $15,000; the rest will go to her lawyers.” (see Jul. 12 and links from there). Kimberly Swygert has more as does the Weekly Standard’s Jonathan Last (Aug. 20)(& letter to the editor, Sept. 18).
California’s busiest disabled-law enforcer
“Must a rustic winery pave country lanes and a parking lot to welcome visitors in wheelchairs? … Facing off against the wineries is George Louie, the controversial head of the Americans with Disabilities Advocates in Oakland, California, who has sued hundreds of wineries, banks and stores to improve access for the disabled. ‘We hunt you down … We really do you in,’ he said in an interview. … Kathleen Finnerty, who has defended firms in many such cases, said difficult-to-meet rules to give access to the disabled have bankrupted some firms. A diaper shop in Oakland, a Berkeley winery, a Sacramento restaurant and a root beer stand have gone out of business following the suits, she said. … ‘Guys like George Louie who abuse the system, you know, create a problem for us with public perception, they create a problem with the courts,’ Wolinsky said [Sid Wolinsky, director of litigation of Berkeley-based Disability Rights Advocates]. ‘I’m totally opposed to that.’ Louie, who is black, said some of such criticism is fueled by racism.” (However, Disability Rights Advocates’ own more respectable uses of the ADA may prove equally or more damaging to the California economy: in a lawsuit going to trial this week, it’s trying to force the big clothing discounter Mervyn’s to uncrowd its merchandise displays so that wheelchair users can freely navigate between clothing racks, a step that if successful would markedly raise the cost of doing business.) (“California lawsuits test obligations to the disabled”, CNN, Aug. 8)(via Legal Reader).
“Virtually without exception, Louie’s defendants settle out of court by paying legal fees for both parties and the cost of facility upgrades. Bills commonly reach $10,000 — sometimes up to $100,000 — including at least $4,000 per case in awards to Americans With Disabilities Advocates. Last year alone, Louie said, revenues for Americans With Disabilities Advocates easily topped $500,000, mostly from out-of-court settlements.” Louie “likes to compare his organization to a well-oiled business” but claims not to draw a salary from AWDA. “In 1968, he was convicted of interstate transport of counterfeit checks and served more than six years in federal penitentiaries. He also said he served time in a state prison in the early 1980s for robbing a drug dealer.” (Mike Lee, “Disability activist sets sights on state’s wineries”, Sacramento Bee/Contra Costa Times, Jun. 8)(more on disabled-rights filing mills)(& welcome Reason “Hit and Run” readers).
School not obliged to offer summer program
A federal judge has ruled that a private boys’ school is not obliged to offer a summer instruction program as a way of accommodating a disabled student who would otherwise fall behind his class. The Haverford School in suburban Philadelphia had already extensively accommodated previous requests by the junior, who has been diagnosed with chronic fatigue syndrome and sleeping disorders. Could this be what the American Constitution Society is talking about when it refers in alarmist tones to the “vanishing” Americans with Disabilities Act? (Shannon P. Duffy, “School Not Obliged to Offer Summer Program Under ADA”, The Legal Intelligencer, Aug. 7).
Bus driver who can’t distinguish traffic signals not protected by ADA
Pedestrians around New York City can relax a bit: the Second Circuit has upheld the right of the city’s Transit Authority to remove from his job as a bus driver Curtis Shannon, whose color-blindness renders him unable to distinguish traffic signals. (Shannon v. NYCTA, 332 F.3d 95, summarized at Neighborhood Legal Services site; Second Circuit, search on docket for #02-7266, decided Jun. 13, 2003).
“Wheelchair ramps in the high alpine zone”
At The New Criterion’s newly launched weblog Armavirumque, James Panero tells how the Americans with Disabilities Act led to the installation of a wheelchair ramp at Galehead Hut in northern New Hampshire, which is “perhaps the most inaccessible” of the Appalachian Mountain Club’s historic system of White Mountain huts and can be reached only by hiking over very rugged terrain (Jul. 7).
Also via Armavirumque (Jul. 8), Theodore Dalrymple on the premise behind fast-food lawsuits: “Left to his own devices, the denizen of hamburger restaurants would eat fresh carrots and brown rice, his natural choices. … This picture is of a world in which humanity as a whole is good, but is so innocent that it is diverted from the paths of righteousness by a few evilly disposed persons such as the directors of food companies. Were it not for them, we should all be thin as rakes and fit as fleas.” (“The Devil’s Food Cake Made Me Do It”, National Post (Canada), Jul. 5).