Slide 1 Welcome to the 2013 Legal Issues Webinar Series 
The content and materials of this training are property of the Great Lakes ADA Center and cannot be distributed without permission.  This training is developed under NIDRR grant #H133A110029. For permission to use training content or obtain copies of materials used as part of this program please contact us by email at adaconferences@adagreatlakes.org or toll free 877-232-1990 (V/TTY).

Slide 2 Webinar Features
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•	Questions – Highlight “Great Lakes” in the participant list and “right click” on your mouse to send a private message.  Type your message into the chat area that appears.  The question will be viewed by all moderators.

Slide 3 Webinar Features 
•	Please refrain from using the emoticons, hand-raising and polling features during this session unless directed to do so by the presenter.

Slide 4 The Top 12 ADA Cases of 2012 
Presented by:
Barry Taylor, VP for Civil Rights and Systemic Litigation, Equip for Equality
Rachel Weisberg, Staff Attorney, Equip for Equality
January 16, 2013 

Slide 5 Continuing Legal Education Credit for Illinois Attorneys 
•	This session is eligible for 1.5 hours of continuing legal education credit for Illinois attorneys. 
•	Illinois attorneys interested in obtaining continuing legal education credit should contact Barry Taylor at: barryt@equipforequality.org
•	This slide will be repeated at the end.

Slide 6 Overview – The Top 12 Cases 
•	TITLE I
•	EEOC v. United Airlines
•	EEOC v. Henry’s Turkey Farm
•	Kobler v. Illinois Department of Human Services 
•	EEOC v. Dilliard’s Inc. 
•	EEOC v. Thrivent Financial for Lutherans 
•	Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC
•	TITLE II
•	Lane v. Kitzhaber
•	Noel v. New York City Taxi and Limousine Commission 
•	U.S. DOJ action against the Sacramento Public Library Authority 
•	TITLE III
•	Liese v. Indian River County Hospital District 
•	National Association of the Deaf et al v. Netflix 
•	Illinois Attorney General’s settlement with AMC Movie Theatres

Slide 7 Top 12 ADA Cases for 2012 
Title I Cases
EEOC v. United Airlines
EEOC v. Henry’s Turkey Farm
Kobler v. Illinois Department of Human Services 
EEOC v. Dilliard’s Inc. 
EEOC v. Thrivent Financial for Lutherans 
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

Slide 8 Reassignment as a Reasonable Accommodation 
EEOC v. United Airlines Inc,                                                                   693 F.3d 760 (7th Cir. 2012)
•	Facts of the case
•	United’s Reasonable Accommodation Guidelines: Acknowledged that transfer to an “equivalent or lower-level vacant position” may be a reasonable accommodation but specified that the reassignment/transfer process was competitive
•	EEOC lawsuit: 
•	United’s policy violates ADA.
•	Seventh Circuit precedent undermined the Supreme Court’s decision in U.S. Airways v. Barnett.
QUERY: Why did EEOC argue to overturn Seventh Circuit precedent? 

Slide 9 EEOC v. United Airlines
 History of Reassignment in the Seventh Circuit 
EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000)
•	ADA does not require an employer to reassign an employee to a vacant position if there is a better applicant so long as it’s the employer’s policy to hire the best applicant for the position.
U.S. Airways v. Barnett, 535 U.S. 391 (2002) 
•	Although reassignment was not required in this case because of the employer’s seniority system, the Court found that an even if an accommodation would provide a preference, it does not make it unreasonable.  
Mays v. Principi, 301 F.3d 886 (7th Cir. 2002)
•	Reaffirmed Seventh Circuit’s holding in Humiston-Keeling. Considered Barnett but concluded that an employer’s policy to hire the best qualified applicant was like an employer’s seniority system. 

Slide 10 EEOC v. United Airlines
Procedural History / Court’s Analysis 
•	District Court: Granted United’s motion to dismiss; 7th Circuit precedent Humiston-Keeling, was directly on point.
•	7th Circuit Panel (3 Judges): Affirmed dismissal.
•	7th Circuit precedent: reassignment to a vacant position not required. 
•	Suggested en banc hearing to consider overruling Humiston-Keeling.  
•	En banc Panel: Overruled Humiston-Keeling & Mays. 
•	“We . . . hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would ordinarily be reasonable and would not present an undue hardship to that employer.” 
•	A “best-qualified policy” is not the same as a seniority system and does not always represent an undue hardship. 

Slide 11 EEOC v. United Airlines, Inc. 
Court’s Analysis Remanded the case to district court to conduct Barnett analysis
Step 1: Employee: Show accommodation is reasonable on its face
•	Court does not believe this will cause the district court any difficulty 
•	Barnett - normally a request for reassignment is reasonable 
Step 2: Employer: Show special circumstances to demonstrate undue hardship in the particular circumstances 
•	If the accommodation is shown to be reasonable in the run of cases, the employer has the burden to prove that granting the accommodation would impose an undue hardship here 
•	If the accommodation is shown to be unreasonable in the run of cases, the employee can still prevail by showing that special circumstances warrant a finding that the accommodation is reasonable under the particular facts 

Slide 12 Other Circuits on Reassignment 
Majority  Rule: Reassignment to a vacant position w/o competition is reasonable absent undue hardship or  seniority system.
•	 Tenth Circuit:  Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th  Cir. 1999) (en banc)
•	 D.C. Circuit: Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc) 
Minority Rule: Employers can make reassignment competitive.
•	 Eighth Circuit:  Huber v. Wal-Mart, 486 F.3d 480 (8th Cir. 2007)   
Note:  The Eighth Circuit adopted the reasoning in Humiston-Keeling “wholesale” and “without analysis.” Supreme Court agreed to review in Huber, but dismissed the case before ruling after the parties settled.                     
QUERY: Ripe for Supreme Court review? 

Slide 13 Court finds ADA violations and orders $1.3 million in backpay to workers with intellectual disabilities
EEOC v. Hill County Farms, Inc., d/b/a Henry’s Turkey Service  
3:11-cv-00041 (S.D. Iowa) (Order dated 9/18/12, Docket No. 36)
•	Henry’s employed people with disabilities to work in a turkey processing plant
•	Henry’s had a contract with West Liberty Foods during the applicable time period
•	Henry’s employees worked on the processing line next to the West Liberty Foods employees who did not have disabilities
•	Henry’s employees lived in a converted school house called “the Bunkhouse” until the State of Iowa shut it down in February of 2009.
•	Henry’s paid its workers $65.00/month (approximately $15.00/week)
•	Henry’s asserted that it paid at least a legal minimum wage because of lawful deductions for “room and board” and “in kind care.”  
•	But Henry’s was the representative payee of the employees’ Social Security benefits, and $426.28/month was used to “reimburse” Henry’s for “board, lodging and other facilities”  

Slide 14 EEOC v. Henry’s Turkey Service
 Facts of the case 
EEOC sued on behalf of 32 employees with intellectual disabilities: 
•	Hostile work environment:  Employees were subjected to derogatory and humiliating name calling based on their disability, and subjected to physical abuse by their supervisors. 
•	Terms, conditions and privileges of employment: Employees were relegated to substandard living conditions; inadequate attention to illness and injury; imposition of excessively harsh discipline; restrictions on freedom of movement and communication; discriminatory job assignments. 
•	Discriminatory wages/benefits: Employees received wages of $60 or $65 per month for working at least 35 hours per week, which were significantly less than wages paid to non-disabled employees at the same facility who held the same or similar positions. 

Slide 15 EEOC v. Henry’s Turkey Service
EEOC filed motion for partial summary judgment on wage claim
Court granted motion finding Henry’s pay practices were discriminatory 
•	Henry’s was not justified in paying lower wages to employees with disabilities by any of the provisions of the FLSA (consistent with and mandated by previous decisions brought by the DOL against Henry’s)
•	Evidence:
•	Henry’s workers were as productive as other workers in the plant  
•	Henry’s workers demonstrated their knowledge and skills to persons hired to replace them
•	Although the plant paid Henry’s as much as $11,000/week for the work performed by the crew of 25-30 men, Henry’s paid its employees an average of $15/week 
•	Testimony about Bunkhouse’s substandard living conditions discredited Henry’s wage credit argument 

Slide 16 EEOC v. Henry’s Turkey Service
Calculated damages: 
•	Based on comparable market wage rate earned by employees without disabilities 
•	Should have received $11-12 per hour instead of $65 per month
•	Pay to each worker should have ranged from $28,000 to $45,000 over the course of their last two years before Henry’s was shut down in February 2009 
•	No deductions for room, board or other expenses pursuant to the FLSA so no credited wages shall be applied to the total amount of back pay for lost wages 
•	Total: $1,374,266.53 plus prejudgment interest (calculated to be $283,568.06) 
What’s Next? March 25, 2013: Scheduled trial on all remaining claims 
FLSA/Wage cases against Henry’s 
•	Solis v. Hill Country Farms, 808 F.Supp.2d 1105 (S.D. Iowa 2011) aff’d 2012 WL 1674176 (8th Cir. 2012)
•	Henry, et al. v. Iowa Dep’t of Workforce Dev., 820 N.W. 2d 160 (Table) (Iowa Ct. App. June 27, 2012) 

Slide 17 ADAAA: Definition of Disability 
Continuing Violation
Kobler v. Illinois Department of Human Services et al, 2012 WL 5995836 (N.D. Illinois 2012) 
•	Plaintiff worked as a registered nurse at a mental health facility
•	Plaintiff has asthma triggered by strong perfumes and other fragrances 
•	She frequently had to leave the nurses’ station and use an inhaler, especially when one colleague was around
•	Beginning in October 2009, she requested that defendants institute a restrictive fragrance policy or alternatively ask employees wearing strong fragrances to refrain from wearing them
•	Plaintiff pursued her request for over a year
•	Plaintiff alleged that defendants failed to accommodate her; proposed inadequate alternative solutions; and retaliated against her by attempting to place her on the night shift and lower her performance evaluations 

Slide 18 Kobler v. Illinois Department of Human Services
Continuing Violation Doctrine 
•	Defendants: Filed motion to dismiss arguing that all acts prior to 2/23/10 were barred by the statute of limitations. Plaintiff made repeated requests for the same accommodation each constituting discrete acts. 
•	Plaintiff: Defendants’ actions were a pattern of conduct that continued into the limitations period subject to the continuing violation doctrine. 
•	Court: Facts are in dispute so denied motion to dismiss. 
•	Could be a continuing violation: If Plaintiff made one long drawn-out request that was never definitively acted upon until the summer of 2010.
•	Might not be a continuing violation: If Plaintiff’s request was one request made the same way several times with each request being rejected clearly and definitively.

Other continuing violation doctrine cases: Corosa v. Nashua Hous. Authority, 2011 WL 1485613 (D.N.H. Apr. 19, 2011) (finding hostile work environment to be a “continuing violation”) Jacoby v. Bethlehem Suburban Motor Sales, 2011 WL 1884015 (E.D. Pa. May 17, 2011) (declined to apply continuing violation doctrine)

Slide 19 Kobler v. Illinois Department of Human Services
Ex Parte Young 
•	Defendants argued: Rehabilitation Act does not provide liability for individual defendants in their individual or official capacities. 
•	Court:  State officials are proper defendants under Ex Parte Young, which permits state officials to be sued for prospective injunctive relief. 
•	Defendants reply: Plaintiff must show that individuals have “some connection” to the acts alleged. 
•	Court: Fact question that can be addressed in a summary judgment motion. 
See Bruggeman v. Blagojevich, 324 F.3d 906, 912 (7th Cir. 2003) 

Slide 20 Kobler v. Illinois Department of Human Services
ADAAA: Definition of Disability 
•	Defendants argued: Plaintiff is not a qualified individual with a disability.  Asthma is not substantially limiting if it is only triggered when exposed to a fragrance. 
•	Court:  ADAAA “expanded the definition of disability.” 
•	Noted that Defendants conceded that that courts have found episodic conditions to be covered if they are substantially limiting when active under ADAAA. 
•	Disability inquiry is premature in MTD stage, as evidenced by the fact that cases cited by Defendants were motions for summary judgment. 
Other 2012 episodic conditions cases:
•	Katz v. Adecco USA, Inc., 2012 WL 78156 (N.D.N.Y. Jan. 10, 2012) (breast cancer in remission qualifies as disability under ADAAA)
•	Pearce-Mato v. Shinseki, 2:10-CV-1029, 2012 WL 2116533 (W.D. Pa. June 11, 2012)(denying MSJ because plaintiff’s Vocal Cord Edema, fibromylagia, and neck/back diseases were substantially limiting when active). 
For more information, see Great Lakes ADA Center Legal Brief: “ADA Amendments Act Update Legal Brief.”  Available at: http://www.adagreatlakes.org/Publications 

Slide 21 Kobler v. Illinois Department of Human Services
Reasonable Accommodation / Interactive Process 
•	Defendants’ argument: Plaintiff’s proposed accommodation of a scent-free workplace is objectively unreasonable and poses an undue hardship as some patients need scented medications and visitors are not bound by the policy. 
•	Court:  Depends on facts that are undeveloped/disputed. At this stage, it is unclear whether Plaintiff’s request related “merely to one smaller unit within a larger workplace” and whether the request was for a “restrictive fragrance policy” or a scent-free policy. 
•	Plaintiff also alleged failure to engage in interactive process to find other  solutions (ex: email requesting that employees refrain from scents). 
Note:  Failure to engage in the interactive process can preclude summary judgment in certain circumstances. Compare Valdez v. McGill, 462 Fed. Appx. 814 (10th Cir. 2012) (employer not required to engage an employee in a futile interactive process) with Faison v. Vance-Cooks, 2012 WL 4789172 (D.D.C. Oct. 9, 2012) (noting that summary judgment cannot be granted if a jury can conclude that an employer’s failure to engage in the interactive process led to the employer not according reasonable accommodation to the employee). 

Slide 22 Undue Hardship: Case Law About a Scent-Free Workplace 
McBride v. City of Detroit, 2008 WL 5062890 (E.D. Mich. 2008) 
•	Facts: Court refused to dismiss ADA case brought by employee with chemical sensitivity seeking policy on scents in the workplace. Said that scent-free policy would be an undue hardship, but employee not seeking scent-free workplace.
•	Case settled: Employee awarded $100,000. Notices placed in city buildings asking employees to refrain from wearing scented products such as colognes, aftershave lotions, perfumes, deodorants and use of scented candles, perfume samples in magazines and air fresheners. Other notices will go in new employee handbook and ADA trainings. 
Monterroso v. Sullivan & Cromwell, LLP, 591 F.Supp. 2d 567 (S.D.N.Y. 2008)
•	Facts: Secretary had asthmatic reactions to fumes/cleaning solutions. Requested “no propellant” policy as an accommodation.
•	Court denied defendant’s motion for summary judgment: Question of fact as to whether a “propellant free” policy would be an undue hardship.

Slide 23 Dilliard’s Agrees to Pay $2              Million to Settle Class Action 
EEOC v. Dilliard’s Inc., et al, Case No. 08-CV-1780 (S.D. Cal.)
•	Dilliard’s Attendance Policy
•	2005 Policy: A health-related absence would not be excused unless the employee submitted a doctor’s note stating “the nature of the absence (such as migraine, high blood pressure, etc.)” 
•	2006 Policy Reaffirmation: Clarified that the doctor’s note “must state the condition being treated.” 
•	Employees with four unexcused absences were terminated. 
•	Charging Parties (one example) 
•	Corina Scott: Terminated after she returned to work without providing her medical condition. Her supervisor did not accept the note because it did not state the condition being treated.

Slide 24 EEOC v. Dilliard’s Inc.
History of case 
•	9.29.08: EEOC filed a lawsuit against alleging Dilliard’s policies and practices violated the ADA in two ways: 
•	Dilliard’s longstanding national policy and practice required all employees to disclose personal/confidential medical information to be approved for sick leave. 
•	Dilliard’s terminated a class of employees for taking sick leave beyond the maximum time allowed without first engaging in the interactive process to determine if more time was allowed under the ADA as a reasonable accommodation. 
•	02.09.12: Court denied Dilliard’s motion for summary judgment.
•	12.18.12: EEOC filed proposed consent decree and order.  Court found Decree fair and adequate. 

Slide 25 EEOC v. Dilliard’s Inc.
Dilliard’s Motion for Summary Judgment 
•	Relevant statutory language:
•	“A covered entity shall not . . . make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). 
•	First Question: Does Dilliard’s policy call for a prohibited medical inquiry? 
•	9th Circuit had not yet determined what is an unlawful inquiry.
•	Court examined divergent decisions from two other circuits. 
•	Second Circuit: Conroy v. New York Dep’t of Correctional Svcs., 333 F.3d 88 (2d Cir. 2003). 
•	Sixth Circuit: Lee v. City of Columbus, 636 F.3d 245 (6th Cir. 2011) 
•	9th Circuit considered when a medical examination triggers ADA protections in Indergard v. Georgia-Pacific Corp., 582 F.3d 1049 (9th Cir. 2009) 

Slide 26 EEOC v. Dilliard’s Inc. 
Conroy v. New York Dep’t of Correctional Svcs., 333 F.3d 88 (2d Cir. 2003). 
•	Policy: Employees returning to work must provide a medical certification that included “a brief general diagnosis” sufficient to allow DOCS “make a determination concerning the employee’s entitlement to leave or to evaluation the need to have an employee examined . . . prior to returning to duty.”  
•	Second Circuit: Policy is a medical inquiry because questions about a “general diagnosis may tend to reveal a disability.”
•	But see Lee v. City of Columbus, 636 F.3d 245 (6th Cir. 2011) (upholding similar policy requiring employees to state the “nature of the illness” while finding that Conroy’s “may tend to reveal” standard “unnecessarily swept . . . legitimate and innocuous inquiries” within the statute’s protection). 
Indergard v. Georgia-Pacific Corp., 582 F.3d 1049 (9th Cir. 2009) 
•	Company required employee to take physical capacity evaluation (PCE) before returning to work after returning from medical leave.
•	9th Circuit: Citing Conroy. PCE is a medical exam: “went beyond simply measuring her physical ability to perform job tasks and could have revealed a disability.”

Slide 27 EEOC v. Dilliard’s Inc.
What is an Inquiry? 
•	Holding: Dilliard’s Attendance Policy permitted supervisors to conduct impermissible disability-related inquiries. 
•	Analysis: By requiring disclosure of “the condition being treated” and “the nature of the absence,” Dilliard’s Policy’s requires disclosure of information “substantially similar to the questions in Conroy  (“brief general diagnosis”). Thus, Policy requires employees to disclose information that “may tend to reveal a disability.”
•	“Such Policy invites intrusive questioning into the employee’s medical condition, and tends to elicit information regarding an actual or perceived disability.” 
•	Impact: Absent a showing that the Policy was job-related and consistent with business necessity, it violates § 12112(d)(4)(A). 

Slide 28 EEOC v. Dilliard’s Inc. 
•	Next question: Is Dilliard’s policy job-related and consistent with business necessity? 
•	Dilliard’s argues: Policy verifies the legitimacy of the medical absence and is necessary to ensure an employee can safely return to work. 
•	Court: Denies summary judgment. 
–	Dilliard’s provided no evidence that it needed to know the nature of an employee’s medical condition to protect health and safety of others;
–	Dilliard’s failed to explain why it was necessary for the doctor’s note to state the medical condition; and
–	Dilliard’s rescinded its policy in July 2007 and has failed to explain how it is now able to operate as a business without such policy.
For more information, see Great Lakes ADA Center Legal Brief: “Advising People with Disabilities About the Disabilities Inquiry and Medical Examination Provisions of the Americans with Disabilities Act.” Available at: http://www.adagreatlakes.org/Publications 

Slide 29 EEOC v. Dilliard’s Inc. 
Three year consent decree
•	Monetary Payments: $2 million
•	Charging parties receive portion designated by EEOC; Rest to class fund
•	Other Relief: 
•	Enjoined from implementing the disclosure policy found to be facially discriminatory and any other policy that limits the amount of leave an employee may take without considering accommodations
•	Hire a consultant to review and revise company policies as appropriate
•	Implement effective training for both supervisors and staff on the ADA, emphasizing medical inquiries and maximum leave policies
•	Create procedures and practices to hold supervisory and HR employees accountable for compliance with the new policy 
•	Develop a centralized tracking system for employee complaints about disability discrimination

Slide 30 7th Circuit: Another case on the definition of “Inquiries”
EEOC v. Thrivent Financial for Lutherans, 700 F.3d 1044 (7th Cir. 2012) 
•	Employee hired by Omni to work as a temporary programmer for Thrivent pursuant to an agreement between Omni and Thrivent.
•	Employee did not report for work one day or notify anyone. Thrivent called the Omni account manager, who then emailed employee to ask what was going on. 
–	Email:  “Gary, Give us a call, and give John a call. We need to know what is going on. John called here looking for you.” 
•	Employee responded disclosing that he had been in bed with migraine headaches and noted his history of migraines. One month later, the employee quit. 
•	Employee struggled to find a new job; three prospective employers lost interest after conducting reference checks. 
•	Employee hired an online reference checking agency and discovered that his Thrivent supervisor was telling prospective employees:  “[He] has medical conditions where he gets migraines. I had no issue with that. But he would not call us. It was the letting us know.” 

Slide 31 EEOC v. Thrivent Financial for Lutherans
•	EEOC filed lawsuit: Thrivent violated the ADA confidentiality provisions in 42 U.S.C. § 12112(d) by revealing to prospective employers confidential medical information obtained from a medical inquiry. 
•	Relevant statutory text: 
–	42 U.S.C. § 12112(d)(3)(B) : “information obtained regarding the medical condition or history . . . is treated as a confidential medical record.” 
–	42 U.S.C. § 12112(d)(4) Examination and inquiry 
•	(B) … “A covered entity may make inquiries into the ability of an employee to perform job-related functions.” 
•	(C) … “Information obtained under subparagraph (B) regarding the medical condition or history of any employee are subject to the requirements of subparagraphs (B) and (C) of paragraph (3).” 

Slide 32 EEOC v. Thrivent Financial for Lutherans 
District Court: Threshold Q = Did Thrivent learn of employee’s medical info through a medical inquiry? If not, confidentiality provisions did not apply. 
EEOC argued:
(1) Thrivent learned about employee’s migraine condition in the course of conducting a medical inquiry; OR
(2) Thrivent learned about the employee’s migraine in the course of conducting inquiries into the ability of an employee to perform job-related functions. 
District Court: Email was not a medical inquiry. Given the “vast” number of reasons an employee can miss work without informing his employer, it is “unreasonable to assume that an employer checking in on his absent employee has the intent to request or acquire medical information.” 
QUERY: How would this case turn under the “may tend to reveal” standard?

Slide 33 EEOC v. Thrivent Financial for Lutherans 
•	On appeal to Seventh Circuit: 
–	EEOC drops the argument that the email constituted a medical inquiry. 
–	EEOC argues that ADA’s confidentiality provisions protect all employee medical information revealed through “job-related inquiries.”
•	Seventh Circuit: Affirmed summary judgment: The term “inquiries” in 42 U.S.C. § 12112(d) refers only to medical inquiries—not all job-related inquiries. 
–	Rejected EEOC’s argument that “inquiries” include all interactions between employer and employee initiated by employer and result in the employee revealing medical information. 
–	Noted that such interactions might be inquiries if the employer has preexisting knowledge that the employee was ill or physically incapacitated. 
–	Here: No evidence employee’s absence was due to a medical condition; that he was sick; or experienced headaches at work. Absence was “just as likely due to a non-medical condition as it was due to a medical condition.”
QUERY: Is this consistent with Dilliard’s and Conroy? 

Slide 34 The Ministerial Exception 
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC
132 S.Ct. 164 (2012)
•	Church operated a small school in Redford, Michigan. 
•	2 categories of teachers: “called” and “lay” – generally performed same duties
•	Called teachers: “Called to their vocation by God through a congregation.”
•	Academic requirements (i.e., completing a colloquy at a Lutheran college)
•	Title: Minister of Religion, Commissioned
•	Services an open-ended term rescinded only for cause by a supermajority vote of the congregation
•	Lay teachers: 
•	No religious requirements
•	Appointed by school board without vote of the congregation 
•	One-year renewable terms

Slide 35 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC 
•	Plaintiff worked as a called teacher. 
•	Taught math, language arts, social studies, science, gym, art & music. 
•	Also taught a religion class four days a week, led students in prayer and devotional exercises each day, attended a weekly school-wide chapel service. Led service about two times a year. 
•	Plaintiff developed narcolepsy and started the 2004-2005 school year on disability leave. 
•	January 2005: Notified principal that she would be able to report to work the following month. Principal advised that school had contracted with a lay teacher to fill her position for the remainder of the year. 
•	Church: Decided Plaintiff unable to return; offered Plaintiff a “peaceful release” from her call where it would pay a portion of health insurance in exchange from her resignation as a called teacher. 

Slide 36 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC 
•	Plaintiff refused to resign. 
•	Plaintiff presented herself on the day she was medically cleared to return. Principal asked her to leave.  
•	Principal called Plaintiff to tell her she would likely be fired. 
•	Plaintiff responded that she spoke to an attorney and intended to assert her legal rights. 
•	Terminated for “insubordination and disruptive behavior” and damage to “working relationship” by “threatening to take legal action.”
•	NOTE: Opinion discusses the Lutheran doctrine belief that disputes should be resolved internally without resort to the civil court system. 

Slide 37 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC 
EEOC filed suit and Plaintiff intervened.
•	District court: Suit barred by ministerial exception granting MSJ.
•	Sixth Circuit: Recognized the ministerial exception barring certain employment discrimination claims against religious institutions. Found that Plaintiff did not qualify as a minister emphasizing that her duties as a called teacher were identical to those of lay teachers. 
•	Supreme Court: Agreed to hear case.
Ministerial exception
–	1st Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
–	Courts of Appeals: Uniformly recognized the First Amendment to create a “ministerial exception” to employment discrimination cases. 
–	Supreme Court: Had not yet considered this concept. 

Slide 38 Hosanna-Tabor Evangelical Lutheran
Supreme Court Holding 
Supreme Court recognized the ministerial exception exists
•	Requiring a church to accept/retain an unwanted minister or punishing the church for failing to do so interferes with the “internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”
•	Imposing an unwanted minister “infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.” 
•	Also violates the Establishment Clause “which prohibits government involvement in such ecclesiastical decisions.” 

Slide 39 Hosanna-Tabor Evangelical Lutheran
Supreme Court Holding 
Supreme Court found the ministerial exception applied to this case.
•	Standard: Declined to adopt a rigid formula for deciding when an employee qualifies as a minister. 
•	Here: Under the totality of the circumstances – Plaintiff is a minister.
Circumstances
•	Church held Plaintiff out as a minister issuing her a “diploma of vocation” and with her title “Minister of Religion, Commissioned.”
•	Significant degree of religious training.
•	Plaintiff held herself out as a minister by accepting the formal call in accordance with its terms (claimed a housing allowance on her taxes available for employees “in the exercise of the ministry”).
•	Job duties: Religious classes 4 days/week; Led Prayer 3 times/day.
Emphasized that this is a narrow holding 

Slide 40 Top 12 ADA Cases for 2012 
Title II Cases
Lane v. Kitzhaber
Noel v. New York City Taxi and Limousine Commission 
U.S. DOJ action against the Sacramento Public Library Authority 

Slide 41 Olmstead Litigation 
Olmstead v. L.C., 527 U.S. 581 (1999)
•	Two women unable to leave state-run institutions
•	Ct: Unjustified isolation of pwds is discrimination
Over the years, case has been applied beyond original facts. ADA integration mandate also applied to:
•	People at risk of institutionalization
•	People living in state-funded, but privately owned institutions
Open question – Does integration mandate also apply to people segregated in sheltered workshops?

Slide 42 Olmstead Applied to Sheltered Workshops 
Lane v. Kitzhaber, 841 F. Supp. 2d 1199 (D. Ore. 2012)
•	Suit filed by eight individuals with intellectual or developmental disabilities who qualify for or receive employment services from State. 
Allegations:
•	Each plaintiff is able and would prefer to work in an integrated employment setting. 
•	Each plaintiff remains unnecessarily segregated in sheltered workshops and denied virtually all contact with individuals without disabilities as a result. 
•	Defendants filed motion to dismiss. 
•	Court granted motion to dismiss, but gave plaintiffs opportunity to amend, and made various conclusions in its order. 

Slide 43 Lane v. Katzhaber 
•	Court:  Title II’s Integration Mandate Applies to the Provision of Employment-Related Services 
•	Deferred to DOJ’s 2011 Statement that a “comprehensive, effectively working plan” written pursuant to Olmstead includes commitments for each group “unnecessarily segregated” including “individuals spending their days in sheltered workshops or segregated day programs.” 
•	Rejected Defendants’ argument that DOJ’s 2011 Statement conflicted with DOJ’s 1991 Commentary stating that individuals with disabilities should not be denied to “jeopardize . . . The continued viability of . . . sheltered workshops.” 
•	Instead, found DOJ’s 2011 Statement consistent with its 1991 Commentary because of its language that “[s]eparate, special, or different programs . . . cannot be used to restrict the participation of persons with disabilities in general, integrated activities.”  

Slide 44 Lane v. Katzhaber 
•	Emphasized that Plaintiffs do not argue that sheltered workshops are per se illegal, but that instead, in most circumstances, a more integrated setting is appropriate. 
•	Court rejected Defendants’ argument that the integration mandate applies ONLY to state action that creates a serious risk of institutionalization. 
–	Acknowledged that no other case has applied the integration mandate in any other context, but did not find this to be meaningful. 
–	Focused on:
•	Broad language/remedial purpose of the ADA
•	Lack of case law restricting the reach of the integration mandate
•	Lack of any limiting language suggests the opposite conclusion. 
•	While means and settings might differ, the end goal is the same: to prevent the “unjustified institutional isolation of persons with disabilities,” including in the employment setting. 

Slide 45 Lane v. Katzhaber 
•	Court: Granted motion to dismiss so that Plaintiffs could clarify that Defendants are violating the ADA/Rehab Act by denying employment services to plaintiffs for which they are eligible with the result of unnecessarily segregating them in sheltered workshops (not because of a standard of care issue).
•	Examples of allegations subject to dismissal because they demand a certain standard of care outside the scope of Olmstead. 
–	Failure to offer an adequate array of integrated employment and supported employment services.
–	Failure to provide supporting employment services that would enable plaintiffs to work in integrated employment settings. 
•	Amended complaint: Plaintiffs filed on 5/29/12; Defendants answered. 
•	Class certification granted. Lane v. Kitzhaber, 283 F.R.D. 587 (D. Ore. 2012).

Slide 46 Settlements in Olmstead litigation 
U.S. v. Virginia, No. 3:12-cv-00059-JAG (E.D. Va. 2012)
•	State of Virginia will create 4200 new home and community based waivers for adults and children on waiting lists for community services
•	An “Employment First” policy to expand meaningful work opportunities
•	Housing assistance fund to facilitate independent living opportunities
•	Community crisis system to prevent unnecessary institutionalization
Darling v. Douglas - Final Settlement Approved Requiring California to Provide Appropriate Community-Based Adult Home Care
Dykes v. Dudek - Florida Agrees to Settle P&A Suit on Behalf of Individuals on the DD Medicaid Waiver Waitlist
U.S. v. North Carolina – N.C. Agrees to Provide Community Based Supports and Transition Residents with Mental Illness from Large Adult Care Homes
Van Meter v. Mayhew – Maine Court Approves Olmstead Settlement on Behalf of Individuals with Developmental Disabilities in Nursing Facilities

Slide 47 Must licensed entities be accessible?
NYC Taxi Cab Cases
Noel v. New York City Tax and Limousine Commission,                                      687 F.3d 63 (2d Cir. 2012) 
•	NYC taxis are licensed and regulated by the New York City Taxi and Limousine Commission (TLC)
•	NYC law limits number of yellow cabs – 13,237 
•	233 taxis are accessible - 98.2% are inaccessible.
•	Chances of hailing any taxi in Manhattan within 10 minutes = 87.33%
•	Chances of hailing an accessible taxi = 3.31% 
•	Lawsuit: Taxi services in NYC fail to give meaningful access to persons with disabilities in violation of Title II. 
•	District Court: Granted partial summary judgment to Plaintiffs
•	TLC is a public entity carrying out a public regulatory function that affects and confers a benefit on NYC cab riders; TLC cannot discriminate in any of its functions, including its regulatory activities; TLC must ensure that persons with disabilities have meaningful access to taxis

Slide 48 Noel v. New York City Taxi and Limousine Commission 
Second Circuit vacated ruling for plaintiffs and sent the case back
•	NYC taxi industry is a private industry – not a City program. 
•	Although Title II entities are prohibited from administering a license/certification program in a manner that discriminates on the basis of disability, NYC did not violate requirements for public entities administering a licensing program because ADA’s licensure requirements do not assist persons who are consumers of the licensees’ product.
•	Court distinguished situation where TLC refused to grant licenses to persons with disabilities otherwise qualified to own/operate a taxi.

Slide 49 Noel v. New York City Taxi and Limousine Commission 
•	Called DOJ TAM “persuasive authority.” ADA TAM II-3.7200.
•	“The State is not accountable for discrimination in the employment or other practices of XYZ company, if those practices are not the result of requirements or policies established by the State.”
•	“Although licensing standards are covered by title II, the licensee’s activities themselves are not covered. An activity does not become a ‘’program or activity’ of a public entity merely because it is licensed by the public entity.”
•	Court distinguishes between city programs operated under contractual or licensing arrangements.
•	Neither endorses or challenges the reasoning in Paxton v. State of West Virginia, 192 W.Va. 213 (1994) where WV Supreme Court affirmed writ of mandamus compelling the lottery commission to require all places that sell lottery tickets to be accessible to persons with disabilities. 
•	Emphasized that lottery commission “furnishes the lottery devices and services that allow the licensee to conduct lottery sales.”

Slide 50 Noel v. New York City Taxi and Limousine Commission 

Slide 51 New York City legislation for taxicab customers with visual impairments 
•	NYC ordinance (Introductory Number 599-A) signed into law by Mayor Bloomberg on 12/12/12. 
•	Requirements begin May 1, 2013 
•	All taxicabs will be equipped with instructions for contacting TLC in Braille and large-print text. 
•	Audible announcements regarding: 
•	fare; 
•	instruction for paying the fare;
•	initial charge; 
•	periodic fare updates during the trip;
•	fare at the conclusion of the trip; and 
•	any rate code changes and toll charges.
•	Note: No litigation has been filed regarding this ordinance

Slide 52 Accessible taxicab issues: 
Differences between physical and visual access 
QUERY: 
Is this the same issue? If NYC can require accessibility in the form of audible fare information, should it be required to require physical accessibility? 
•	Potential differences:  
–	TLC regulates “equipment safety and design” - perhaps this includes audible fare information?
–	Taxicabs are required to accept credit card payments – perhaps this new legislation is a similar requirement?
–	Unlike taxicab accessibility, ADA does not exempt taxi fare meters or credit card payment systems?
–	Perhaps this is a distinction between what a City can affirmatively require, and what can be required of a City under the ADA?

Slide 53 Accessible E-Books 
Settlement Agreement: USA, the National Federation of the Blind, and the Sacramento (California) Public Library Authority 
•	Facts: Library bought Barnes & Nobles NOOK e-book readers for a patron-lending program
•	NOOKs are inaccessible to individuals who are blind or have low vision: 
–	Device has no way for individuals to access the devices’ menus and controls through means other than a touch screen interface (ex: audio or tactile feedback)
–	Device has no text-to-speech engine that reads e-content aurally 
•	Complaint to DOJ: NFB filed complaint with DOJ and alleged that the Library’s use of NOOKS violates Title II 
•	DOJ concluded: Library’s use of inaccessible NOOK e-book readers violates Title II by “excluding current and potential patrons with disabilities from participating in or by denying them the benefit of its services, programs, or activities.” 

Slide 54 DOJ Settlement: E-Books
Terms of Settlement 
www.ada.gov/sacramento_ca_settle.htm
•	Parties: Settled complaint 
•	Library: Acquisition of new e-reader devices 
–	Will not acquire any additional inaccessible e-reader devices 
–	Will acquire at least 18 accessible e-reader devices
–	Will deploy all 18 devices through a pilot project 
•	Pilot project will ensure that proper instructions/guidance for use of the accessible devices are provided
–	After pilot program, deploy accessible e-readers with content substantially similar to that on the inaccessible e-reader devices 
–	Library shall maintain at least 18 accessible e-reader devices

Slide 55 DOJ Settlement: E-Books
Terms of Settlement 
Other Terms of Settlement
•	May not require proof of disability before loaning accessible e-reader
–	But may require individuals to “attest in writing” that the accessible e-reader is being borrowed by or for an eligible patron.
•	NOTE: “Attest in writing” language used in DOJ Regulations. See 28 C.F.R. § 35.138(h)(2) (ticketing requirements for series performances)
•	Will publicize the accessible e-readers
•	Will only acquire technology that does not exclude persons who are blind or otherwise need accessibility features
•	Will provide training on Title II of the ADA for all individuals acting on behalf of the Library (employees and volunteers) who interface with the public in any capacity and who have been or may be involved in discussions or decisions about acquiring technology for Library patrons. 

Slide 56 DOJ Settlement: E-Books
Terms of Settlement 
QUERY: What is the difference between this example and the accessible e-book example?
•	Title III Technical Assistance Manual states: 
–	III-4.2500 Accessible or special goods. As a general rule, a public accommodation is not required to alter its inventory to carry accessible or special products that are designed for or easier to use by customers with disabilities. Examples of accessible goods include Brailled books, books on audio tape, closed-captioned video tapes, specially sized or designed clothing, and foods that meet special dietary needs.
–	ILLUSTRATION: A local book store has customarily carried only regular print versions of books. The ADA does not require the bookstore to expand its inventory to include large print books or books on audio tape.
NOTE:  Potential differences include  
•	Different standards for Title II v. Title III entities?
•	Once acquired, need to be accessible?

Slide 57 Top 12 ADA Cases for 2012 
Title III / Section 504 Cases
Liese v. Indian River County Hospital District 
National Association of the Deaf v. Netflix 
Illinois Attorney General’s Settlement with AMC Movie Theater

Slide 58 Communication Access 
Liese v. Indian River County Hospital District,                                       -- F.3d --, 2012 WL 5477523 (11th Cir. Nov. 13, 2012) 
•	Husband and wife – James and Susan Liese – are both deaf.
•	Lieses went to emergency room because Susan was experiencing dizziness and chest pains.
•	Assert that they requested a sign language interpreter on many occasions, including when they first arrived at the hospital and during exchanges with physicians and nurses – no interpreters provided.
•	Susan underwent tests including an X-Ray, EKG – without interpreter, she didn’t understand why she was having these tests.
•	Dr. Perry ultimately informed Susan that she needed to have her gallbladder removed in an emergency procedure.

Slide 59 Liese v. Indian River County Hospital District 
•	Dr. Perry communicated by: speaking, pantomime and note-writing. 
•	Susan asked why she was having surgery on her stomach when she was having pains in her chest.
•	Dr. Perry wrote: Remove it and you’ll feel better after that.
•	Dr. Perry testified that Susan never asked him for a sign language interpreter and that if she had, he would have provided one. 
•	Lieses’ daughter called the Hospital and spoke to a nurse. She also requested an interpreter. Nurse told her “they were working on it” and that a “video box” as good as an interpreter would be provided.
•	Susan had successful surgery. After, Dr. Perry spoke to her. She understood his words to “go home” “rest” and “thumbs up” but understood nothing else.

Slide 60 Liese v. Indian River County Hospital District 
•	Note: Hospital had policy that provides three mechanisms for communicating with individuals with communication disabilities: 
•	Interpreter lists
•	AT&T language line 
•	Video-interpreter service (“My Accessible Real-Time Trusted Interpreter” or “MARTTI”) 
•	Policy doesn’t say when to use these communication aids.
•	Note: Hospital was previously sued for failing to provide effective communication.  Hospital settled and agreed to:
•	Train employees on “treatment of the hearing impaired”
•	Purchase videoconferencing equipment

Slide 61 Liese v. Indian River County Hospital District 
•	Lieses filed suit under Section 504 of the Rehabilitation Act.
•	District Court: Found for Hospital. 
•	Concluded that the facts regarding the earlier settlement were inadmissible and without this information, Plaintiffs failed to offer sufficient evidence to state a valid claim for compensatory damages under the Rehabilitation Act. 
•	11th Circuit Court of Appeals.
•	To recover compensatory damages under Section 504, Lieses were required to show: 
(1) Hospital violated their rights under Section 504; and 
(2) Hospital did so with discriminatory intent.

Slide 62 Liese v. Indian River County Hospital District 
•	Question 1: Did Hospital violate Lieses’ rights under Section 504? 
•	11th Circuit: Yes. Plaintiffs’ provided evidence sufficient to withstand summary judgment on this issue.
•	When a patient has to undergo immediate surgery involving the removal of an organ under a general anesthetic, understanding the risks, necessity, and procedures is “paramount.” 
•	Communications limited to written notes, body gestures, and lipreading “may be ineffective.”
•	Record shows that the limited auxiliary aids used by Dr. Perry were “ineffective and that additional aids were necessary.” 

Slide 63 Liese v. Indian River County Hospital District 
•	Question 2: Did Hospital act with “discriminatory intent”? 
•	11th Circuit: Need to determine standard for determining “discriminatory intent” and which employee actions can be attributed to the Hospital.
•	Discriminatory intent - two alternative standards:
–	Deliberate indifference: Defendant knew that harm to a federally protected right was substantially likely and failed to act on likelihood. 
–	Deliberate animus: Defendants acted with prejudice, spite or ill will. 
•	11th Circuit adopts deliberate indifference standard (easier to prove).
•	Most circuits to address this have adopted deliberate indifference standard. 
–	Adopted deliberate indifference: Barlett v. N.Y. State Bd. of Law Exam’rs, 156 F.3d 321(2d Cir. 1998); Meagley v. City of Little Rock, 639 F.3d 384 (8th Cir. 2011); Duvall v. Cnty. of Kitsap, 260 F.3d 1124 (9th Cir. 2011); Powers v. MJB Acquisition Corp., 184 F.3d 1147 (10th Cir. 1999) 
–	Declined to adopt deliberate indifference standard: Delano-Pyle v. Victoria Cnty., Tex., 302 F.3d 567 (5th Cir. 2002) (affirmed jury verdict in favor of arrestee; used “intentional discrimination”)

Slide 64 Liese v. Indian River County Hospital District 
•	When can personnel actions be attributed to the Hospital? 
•	11th Circuit: Adopted Supreme Court’s approach in Title IX cases to determine when an organization can be liable for actions of its employees/officials.
–	Standard: An official who at minimum has authority to address the alleged discrimination and to institute corrective measures on the [organization’s] behalf [and who] has actual knowledge of discrimination in the [organization’s] programs and fails adequately to respond. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) 
–	Who is an Official? 
•	Lieses: Every single employee.
•	Hospital: Policy makers.
•	11th Circuit:  Rejects both parties’ argument. 
•	Someone who enjoys substantial supervisory authority within an organization’s chain of command and has complete discretion as a “key decision point” in the administrative process.  Fact intensive inquiry.

Slide 65 Liese v. Indian River County Hospital District 
•	Here: Reasonable jurors could conclude that doctors are “officials.”
–	Doctors have discretion to decide whether to provide interpretive aids. 
–	Hospital policy affords Hospital staff complete discretion. 
–	Evidence suggests that while a nurse could ask for an interpreter, doctors had supervisory authority and could overrule a nurse’s decision. 
•	11th Circuit: Reverses grant of summary judgment. 
•	Record: Dr. Perry acted with deliberate indifference because he (1) knew that the Hospital failed to provide appropriate aids to ensure effective communication; (2) had authority to order the aid; and (3) was deliberately indifferent to the Hospital’s failure to provide the aid. 
•	Evidence:  Susan told Dr. Perry she could not read lips and he continued to speak to her; he “laughed at” her and made exaggerated facial movements; He ignored requests for interpreters; She asked the same question multiple days in a row demonstrating that she did not understand Dr. Perry. 

Slide 66 Liese v. Indian River County Hospital District 
QUERY: Does Mr. Liese have his own separate and distinct claim of discrimination?
•	Mr. Liese was also a plaintiff with his own claim for failure to provide effective communication. 
•	Note: 2010 ADA regulations clarify that effective communication obligation applies for “companions.” 28 C.F.R. § 36.303(b)
•	The 2010 Regulations “codify” DOJ’s longstanding position that the obligation to provide effective communication “includes an obligation to provide effective communication to companions who are individuals with disabilities.” 28 C.F.R. § 36.303 app. A. 
–	“Effective communication with companions is particularly critical in the health care settings where miscommunication may lead to misdiagnosis and improper or delayed medical treatment.” 28 C.F.R. § 36.303 app. A. 

Slide 67 Definition of Public Accommodation 
National Association of the Deaf, et al. v. Netflix, Inc.                                       896 F.Supp.2d 196 (D. Mass. 2012) 
•	NAD, Western Massachusetts Association of the Deaf and Hearing Impaired, and Lee Nettles sued Netflix for declaratory/injunctive relief 
•	Complaint: Netflix violated Title III of the ADA because:
–	Netflix provides closed captioning for only a small portion of titles available on Watch Instantly (streaming service)
–	Netflix services are not accessible to deaf and hard of hearing customers (example: captioned films are not categorized in the same manner as other firms so deaf and hard of hearing customers cannot use Netflix’s personalized film recommendations)
•	Court: Denied Netflix’s motion for judgment on the pleadings

Slide 68 NAD v. Netflix 
•	Court:  Websites can be places of public accommodation.
•	Definition of public accommodation: Title III lists 12 categories of entities that qualify as places of public accommodations and lists each category. 42 U.S.C. § 12181(7). 
•	Netflix falls within at least one of three of the ADA’s categories:
–	Service establishment: Netflix provides customers with the ability to stream video programming through the internet.
–	Place of exhibition or entertainment: Netflix displays movies, TV programs, etc. 
–	Rental establishment: Netflix customers pay for the rental of video programs.
•	Irrelevant that ADA does not specifically reference web-based services.
•	Legislative history makes clear that Congress intended the ADA to adapt to changes in technology. 

Slide 69 NAD v. Netflix 
•	Rejected Netflix’s argument that because Watch Instantly is outside the scope of the Title III because it is accessed only in private residence. 
•	ADA covers services “of” a public accommodation; not services “at” or “in” a public accommodation.  
•	Cases cited: 
–	See Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D. Cal. 2006) (found Target’s website subject to the ADA’s requirements because to “limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute”). 
–	See Carparts Distrib. Ctr. v. Auto. Wholesaler’s Assoc., 37 F.3d 12 (1st Cir. 1994) (finding ADA applied to services over the phone). 

Slide 70 NAD v. Netflix 
•	Court rejected Netflix’s final two arguments. 
•	Netflix: No control of the captioning of streaming video content. 
•	Court: Plaintiffs pled sufficiently at this stage because they pled (1) Netflix owns and operates the Watch Instantly website; and (2) Netflix stated that it is working to provide captioning for the content. 
•	Further discovery could reveal that Netflix does not have the power to provide captioning due to copyright issues. Issue not before the Court at this time. 
•	Netflix: Communications and Video Accessibility Act (CVAA) precludes ADA liability. 
•	Court: No. CVAA was intended to complement, not supplant, the ADA. ADA is not inconsistent with duties under CVAA.
Under CVAA, FCC issued regulations requiring video programming delivered using Internet protocol to have closed captioning if it was on television with captioning 

Slide 71 NAD v. Netflix
Consent Decree 
•	Following the court ruling, the parties reached a Consent Decree. 
•	Terms of the Consent Decree:
–	Netflix agreed to provide captioning on 100% of its streaming videos within 2 years. 
–	Netflix also agreed to improve its interface so that subscribers are better able to identify content that has been captioned in the period until 100% captioning is achieved. 
–	Court will maintain jurisdiction for four years to assure compliance with the terms of the Consent Decree. 

Slide 72 Movie Theater Access
Illinois Attorney General’s settlement with AMC Movie Theatres
•	Equip for Equality filed complaint with Illinois Attorney General on behalf of people with vision and hearing disabilities.
•	Illinois Attorney General concluded that AMC was failing to provide equal access to customers with sensory disabilities.
–	Only 21 of 246 theaters in Illinois offered closed-captioning services.
–	Only10 of 246 theaters offered audio-description technology.
•	Settlement terms
–	AMC to provide personal captioning services and audio-description technology for movie-goers at all of its theaters and each of its 460 movie screens by 2014.
www.equipforequality.org/news/pressreleases/april_04_2012amctheatres.php 

Slide 73 Other news in movie theater access:
Cinemark to provide audio descriptions 
Settlement agreement between California Council of the Blind, patrons with visual impairments, and Cinemark
•	Settlement announced 9/27/12.
•	Cinemark will install audio description systems on a rolling basis across its circuit in conjunction with the chain’s conversion to an all-digital format.
•	Note: Installation is already underway, and all theaters in California have audio description capability.
•	Will have audio description at all Cinemark first-run theaters by mid- 2013.
http://lflegal.com/category/audio-description-issues/

Slide 74 Other news in movie theater access: Neckloops / Closed Captioning / Video Descriptions 
Settlement between AZ Attorney General & Cinemark - 7/19/2012
https://www.azag.gov/press-release/attorney-general-horne-and-cinemark-theater-chain-reach-settlement-expand-access
•	Six Arizona theaters will be equipped with neckloops and receivers & will track the demand for neckloops and obtain more to meet the actual demand of customers using the device
•	Cinemark will train its staff to ensure guests can use the neckloops & take steps to market the availability of neckloops including sending information to various agencies, posting signs in its lobby and box office, and indicate availability on its website
Settlement between AZ Attorney General, AZ P&A & Harkins Amusement Enterprises, Inc.- 11/7/11
•	Theaters will provide closed captioning/video descriptions for customers in 50% of the total number of auditoriums in movie theaters in Arizona
https://www.azag.gov/sites/default/files/sites/all/docs/civil-rights/lawsuits/disabilities-act/HARKINS%20CONSENT%20DECREE.pdf 

Slide 75 General ADA Resources
•	National Network of ADA Centers: www.adata.org;  800/949 –4232(V/TTY)
•	Equal Employment Opportunity Commission: www.eeoc.gov 
•	Job Accommodation Network: http://askjan.org 
•	U.S. Department of Justice, ADA Info: www.ada.gov 
•	Equip For Equality: www.equipforequality.org; 800/537-2632 (Voice); 800/610-2779 (TTY)

Slide 76 Continuing Legal Education Credit for Illinois Attorneys 
•	This session is eligible for 1.5 hours of continuing legal education credit for Illinois attorneys. 
•	Illinois attorneys interested in obtaining continuing legal education credit should contact Barry Taylor at: barryt@equipforequality.org 

Slide 77 Thank you for Participating In Today’s Session
Please join us for the next session in this series: 
March 20, 2013
Reasonable Accommodations in Employment – A General Update with Emphasis on Leave and Reassignment 
Brian East 
Slide 78 Session Evaluation
	
Your feedback is important to us
You will receive an email following the session with a link to the on-line evaluation 

Slide 79 The End
Top 12 ADA Cases of 2012
January 16, 2013
 
Presented by: 
Barry Taylor, VP for Civil Rights and Systemic Litigation, 
Equip for Equality

Rachel Weisberg, Staff Attorney, Equip for Equality
Equip for Equality is providing this information under a subcontract with the Great Lakes ADA Center, University of Illinois at Chicago, U.S. Department of Education, National Institute on Disability of Rehabilitation and Research Award No.H133A110029.