Good afternoon, ladies and gentlemen, and welcome to the After the Supreme Court: How are the courts handling ADA cases. At this time all participants are in a listen only mode. Later we will conduct a question and answer session and instructions will follow at that time. If anyone should require assistance from the conference, please press the star followed by the 0 on your touchtone telephone. Also as a reminder this conference call is being recorded. I would now like to turn the conference over to your host, Ms. Robin Jones, Director of Great Lakes ADA IT Center. Miss Jones, you may begin.
Thank you! And welcome every one who has joined us this December day for our December session for an on going conference series that is featured and supported by the 10 regional disability and business technical assistance centers. Our December session is titled After the Supreme Court: How are the Lower Courts Handling Cases Brought Forth Under the ADA? Our featured speaker today is Barry Taylor, who is the director of Litigation Services at Equip for Equality the Protection and Advocacy Agency in the state of Illinois. We will be talking about many different things today and hopefully you have the materials that have been provided as part of this session. In order to take full advantage of the information, if you have not gotten those materials, please make sure that you contact your disability and business technical assistance center for that information, as they have that ask can make sure that you have all of that and are able to take full benefit of that. This session is going to focus on the Supreme Court cases and decisions that have been made related to the ADA, what is going to happen once those cases have gone back to the lower courts for taking the interpretation and applying them to new cases coming through the pipeline as well as what is happening then in the future as they go along. How we are going to run the session today is we are going to have our speaker begin with a discussion of the previous cases, and what has been transpiring. We will then entertain some questions and then come back again for additional dialogue with the speaker, related to the things that are happening currently and in the future and we will open it up again for question and answer. So please make sure you hold your questions, when we give instructions, be ready to introduce your question, hopefully you will be able to deal with everybody''s question again. Please note, that we are online, we are real-time captioned. If you are interested in accessing that, you can do that by going to our website at www.adagreatlakes.org and just follow the links for real time captioning you can save a transcript at the end of the session but we will also have a fully edited transcript as well as a digital recording of the session available on our website at www.adagreatlakes.org following this session so you will be able to access the transcript down the line as well as the materials or listen to it if you would like to do that. Also, all of the past transcripts are also posted on our website, of the many topics that have been covered over the past 3.5 years that this program has been operating. So without further ado at this point, I will go ahead and bring in our speaker. Barry Taylor has worked with the disability and business technical assistance centers nationally on different occasions through providing us with technical assistance and information through training efforts that we have had for all of the DBTACs and their affiliates and what I mean DBTACs is Disabilities and Business Technical Assistance Centers. If you are not familiar with that acronym, Barry has presented many times, been part of this distance learning system on different occasions for other topics related to the interpretation and the legal aspects of the law. He is currently serving as the legal advocacy director for quality where he oversees all programmatic aspects of legal services, self - advocacy and educational training programs for the designated section of advocacy system for people with disabilities in the state of Illinois.
also worked at Lambda, legal defense and education fund in Chicago for a number of years where he worked specifically with individuals with HIV and aids in the legal system, advocating and protecting their rights. He also served as an adjunct professor at John Marshall school of law in Chicago, where he teaches aids and the law to second and third - year law students. Most recently Barry has entered into an arrangement where he will be working with the technical assistance efforts for the DBTACs cross country to help us on an on going basis and analyze some of the case law. We are happy to have him today and squeeze us into his busy schedule. Before I take up too much time I will turn it over to him. Barry.
Thank you very much Robin, I am glad to be back and always enjoy working with the DBTACs. For those of you who aren''t familiar equip for quality is the protection advocacy agency in Illinois and there is a protection advocacy agency in every state that is funded by congress to provide free legal advocacy services to people with disabilities. If you are interested in contacting your local protection advocacy agency the easiest way is to go to our national association''s website, which is napas.org or you can call them at 2 0 2 4 0 8 9 5 1 4 and they can give you the contact information for your local protection advocacy agency. Just a quick disclaimer. I am an advocate for people with disabilities, so I bring that to the people. I obviously support a broad reading of the ADA. When I say unfortunately the court has taken a certain perspective on the ADA, that is narrowing the ADA, you will understand where that is coming from. As far as the format, I am going to be talking about some past ADA cases and what the lower courts have done with those, and then we will talk about any questions you might have. We will go on to talk about other cases currently pending before the Supreme Court over this last year and some emerging issues that may make it to the Supreme Court in the future. When I talk about past ADA cases before the Supreme Court, we will not discuss all of them. We will discuss seven of them. Not all of the ADA cases the court has looked at have really generated that much lower court case law. For instance the Casey Martin case has not brought forth many cases since then. And then a general rule of thumb I think, with any employment discrimination case, it is easy to remember that the Supreme Court has basically found in favor of the employer in every one of those cases and has taken a rather narrow view in its reading of employer''s obligations. We are going to be talking about some employment cases and some non-employment cases but you can be guaranteed that if we talk about employment cases the Supreme Court has ruled in favor of the employer unfortunately. So let us turn to the first case that the Supreme Court decided and that is the Bragdon v. Abbott case. I am sure people are aware of this case and some of the others I am going to be talking about. I won''t go into a lot of detail about the facts, because we don''t have that much time but the Bragdon case, in a nutshell, involved a woman with HIV who wanted dental services, the dentist refused to serve her in his office and said she had to be receiving dental services in a hospital instead because of her HIV status. She sued for lack of equal access to dental services and the question before the Supreme Court was when deciding whether she was covered by the ADA and as many of you know the definition of disability under the ADA is you have to show that you have either to your substantial limitation in major life activity as a result of a physical or mental impairment and the issue in this particular case was what major life activity was she substantially limited in because of her HIV status and she argued that she was substantially limited in the major life activity of reproduction. The Supreme Court agreed and said that she was as a result of her HIV status she had chosen not to reproduce because she didn''t want to infect her unborn child or infect her partner. I think what is important about this case, the Supreme Court expanded upon which activities would be covered under the ADA and they went beyond the major life activities and adopted reproduction as a major life activity, which was not really mentioned in any of the ADA history or regulations that were promulgated. So that was actually a very positive development as far as taking a broad view of the ADA. What has been interesting is how the courts have interpreted this case. That is what I would like to turn to now. If you look at the Rollf case in your handout, that shows that the court said-we are not just talking about HIV being something where reproduction can be a major activity but also Hepatitis C. It shows that this case is not just limited to HIV cases. And what is also important is that you can''t just say reproduction is a major life activity and therefore you are covered by the ADA, you have to show that you are substantially limited in the reproducing, not just the fact that reproduction is a major life activity in your life. And so you see the first case, the Rollf case, they did show that they were substantially limited and reproduction but the same case, same factual pattern, the reece case involving Hepatitis C, they found he was not substancially limited in reproduction sexual activity, because he had not changed those practices as a result of his Hepatitis C. The next case, the Cornman case, is a rather, I think, creative use of the use of reproduction in or use of Bragdon in a particular case involving a breast cancer survivor who basically claimed that because of the surgery she had had, it affected her sexual self - image and ultimately her ability to reproduce. I think this is a good example of the way you can use creative theories in trying to get coverage under the ADA. The next case, McAlindin case goes even further in recognizing sexual relations as a major life activity. This case involves somebody with mental illness, as a result of the medication he was taking, the sexual limitations had been substantially limited and therefore the court found not just reproduction but also sexual performance could also be considered a major life activity. Turning to the next case, the Cruz case, I think this is an important case because it is another HIV case but it is one where the court said he wasn''t covered under the ADA. So this demonstrates that even after the decision in Bragdon, HIV is not a per se disability, in that you have to again show the substantial limitation and they did not show that he was substantially limited in reproduction despite the fact that he claimed that he didn''t purport the evidence, and, therefore, this is a good lesson that just saying that you are substantially limited without putting evidence on is not going to be sufficient for coverage under the ADA. The Christner case is another example of not extending Bragdon because the person did not show substantial limitation, this person had an arm injury and said it affected his ability to engage in sexual activity. I think the lesson from Bragdon is that it is good to be creative and think of different, maybe major life activities that aren''t necessarily the common ones, but to remember that major life activity alone is not sufficient you have to also show substantial limitation. The next case is the Sutton case which is actually part of three cases that were brought forth before the Supreme Court. I would say of all the cases the Supreme Court has decided this is probably the one that has been most damaging to the rights of people with disabilities, in that it is really limited the access of people with disabilities to the courts. Basically in Sutton as many of you probably know it involved two women who wanted to be airline pilots for united airline and they had a visual impairment, but it was a visual impairment that could be corrected by wearing glasses. United had a requirement that you could not be a global airline pilot if you couldn''t see 20/100 without glasses, and so they said that they were not qualified to be airline pilots. The women sued under the ADA, and United Airlines said well while we said you didn''t see well enough to be a global airline pilot we will now argue that you see too well, that when you wear your glasses you are not substantially limited in a major life activity and therefore you are not covered by the ADA. So the question before the court was when you decide whether somebody has a substantial limitation in a major life activity, do you look at them with or without any kind of assistive device or medication, mitigating measure that they might use, and the Supreme Court said that you look at them with the mitigating measure, overruling nine or 10 lower courts on this issue and really changing the whole basically landscape of how you determine if somebody has a disability and really substantially narrowing who is covered by the ADA. If you look under paragraph B there, I list all the different disabilities where people have used mitigating measures, and have been found to not be covered by the ADA because with that mitigating measure they are no longer substantially limited. You have epilepsy, diabetes depression, heart disease, hypertension, cancer, asthma, attention deficit disorder, muscular dystrophy, narcolepsy and people who are hard of hearing. It doesn''t mean that all of these people with these disabilities aren''t covered by ADA it means that some people who have brought suits under the ADA with these disabilities have been found not to be covered because they use mitigating measures, using medication, by using that medication they are no longer substantially limited in that major life activity. Somebody could still use medication or assistive device, and despite the fact that they use one still be covered by the ADA but they would have to show that the substantial limitation that they have as a result of their disability, exists despite the fact that they use some sort of mitigating measure. It is not a per se exclusion if you use any kind of mitigating measure, it just means that you have to take that into account before the court. But what it has really done, it has really excluded hundreds of people who I think the ADA intended to be covered, but the court has found, you know, would not be covered because of the use of the mitigating measure. What is really unfortunate in these cases, I think, is that as a result, you don''t ever get to the underlying discrimination because they are not dead on the box at the very beginning and found not to be covered by ADA so you don''t to the underlying misconduct or alleged misconduct by the employer. I think that is really unfortunate. There are some efforts to potentially change this ruling. There is a law called the ADA restoration act, a bill, rather, that is-people are proposing to go in and fix some of the things this courts have done to narrow the ADA. At this point that bill is not really going anywhere but because of the potential problems that might happen if you introduce a bill might make things worse for the ADA but I think some folks are feeling in light of some of the court decisions legislation is really the only way to fix some of the problems that have occurred. You also see under this section that the regarded-as claim was really weakened by the u.s. Supreme Court. They basically said if you claim regarded-as claim as a major life activity in working an employer will get around that claim by just saying they didn''t regard you as unable to do a broad range of jobs or class of jobs which is the EEOC''s regulation definition but just that they regarded you as not able to do that particular job. If that is all they regard you unable to do then you will not be covered by the ADA. So, we really recommend that people don''t raise the major life activity of working as a major life activity unless they have absolutely no other options because it is very, very difficult to prove. You will see three cases listed there that show how difficult it is to prove cases that look really good, that employers were found to be not liable under the ADA because they only perceived a person or persons to be unable to do a specific job rather than a broad range of jobs. On section D there, this is an area that is rarely used but I think it is one of the good aspects of the Sutton case, and that says that sometimes the mitigating measure used is in and of itself substantially limiting. It has side effects that it causes, and if you can show that the mitigating measure itself causes you to be substantially limited in a major life activity then you will still be covered by the ADA but there had been very few cases that that is been really raised before the court. The McAlindin case is cited there again involving a gentleman with mental illness. He took medication that really substantially limited him in several major life activities is the most prominent case in this area. But this is an area, I think, that maybe people need to think about bringing when they do use a mitigating measure as a way to be covered by the ADA. Section E is probably the most, I think, negative aspect that has come out of the Sutton case is that they have extended Sutton beyond what, I think, even the Supreme Court has intended. Basically in these line of cases it involves somebody who has not chosen to use a mitigating measure but the employer said if they use the mitigating measure, they would no longer be substantially limited. So even though the fact they are actually substantially limited now without taking mitigating measure, we are going to pretend that they did take the mitigating measure and therefore not substantially limited. The Tangires case listed there in the 4th circuit involves somebody with asthma who decided not to take steroids. The employer said well if they had taken the medication they would have mitigated the major life activity of breathing that the client claimed she was substantially limited in, and therefore the court found she could not bring a suit under the ADA. It really required speculation, which is totally contrary to what the Supreme Court said. The Supreme Court said employers shouldn''t have to guess and here the employers are speculating what a person would be like if they actually used medication. And you can see all these other cases. A hypertension case, where somebody didn''t take medication and they found they were not covered by the ADA because if they had taken the medication they would not have the symptoms. Somebody with post-traumatic stress disorder, somebody with epilepsy, and then the last case is, you know, just ridiculous involves somebody with a problem with their throat. They said their difficulty with speaking could have been prevented or eliminated and they had just taken Botox injections, I mean, ridiculous but the plaintiff was found not to have a disability because if she had taken Botox injections she wouldn''t have had-been substantially limited in the major life activity of speaking. So those cases I think are really a ridiculous extension of the Sutton case but as you see there are a number of these kinds of cases in the lower courts. The next case is the Olmsted case, very prominent. As many of you know this involves two women who wanted to be placed in the community, had been found appropriate for the community, but were not placed in the community expeditiously, and they sued under the ADA, saying they were not being placed in the community under the ADA''s integration mandate. And the Supreme Court did something, I think, really important where they found specifically that unwarranted institutionalization of people with disabilities is discrimination that is actionable under the ADA. And that is a very important finding from the court because it shows that unwarranted institutionalization is inherently discriminatory. You don''t have to show that you are adversely affected or treated differently, but just the inherent unjustified institutionalization is enough. The problem that is arisen, though, is that the court did give the states some wiggle room and said that the states, while they have to make modifications on how they serve people with disabilities with respect to community services, they only have to provide those modifications where it would not result in a fundamental alteration. So much that the litigation the Supreme Court decided on instead is what is a fundamental alteration? And for the most part we don''t have a lot of cases but most of the cases have taken a rather broad view of what could be a fundamental alteration. Folks in psychiatric hospital, a third of them had been deemed appropriate for the community. The court said to do so, to force the state to provide community services for those folks would fundamentally alter the system the state had in place and was not required to do so. That case is pending before the 3rd circuit, it is possible the 3rd circuit may narrow how funding is used by states. That is important to ask. A very similar case is the Pennsylvania protection advocacy case, in that same jurisdiction. There is one really positive case that I am going to talk about in a second from Oklahoma, the Fisher case. So I will get to that in just a second. Moving to the next page the Williams case is another example case out of Maryland where the court took a rather narrow view of fundamental alteration finding that Maryland had already supplied sufficient community services and wasn''t required to change its programs to provide additional community services even to those folks it had deemed appropriate to the community. In addition to the fundamental alteration issue, one of the commonly litigated issues after Olmsted is whether or not people who are at risk of institutionalization, who aren''t currently in an institution but who may be if they don''t receive services whether they are covered by the ADA. The court has actually been very positive on this issue and found that even if you are not in an institution you are covered by the Olmsted case. That risk of institutionalization is sufficient so the Makin case in Hawaii involved folks with developmental disabilities who lived at home but weren''t receiving services and they sued and the court found that the ADA''s integration and mandate applied to them, similar to the case here in Illinois found the same thing. The Fisher case, addresses both the risk of institutionalization issue as well as the fundamental alteration issue. The fisher case involved basically Oklahoma''s decision to reduce how many prescription drugs would be available under the community programs. They basically said you would be entitled to unlimited prescription drugs if you were in a nursing facility but if you lived in a community you had to be capped at five prescription drugs. The people who were impacted by this sued under the ADA saying that if they didn''t get the drugs they needed because of this cap they would have to move into a nursing home. That was contrary to the Olmsted case. After the district court found in favor of the state, the case went up to the 10th circuit court of appeals. The 10th circuit court said, first of all, the district court was wrong on whether these people were covered by the ADA and whether the integration mandate of the ADA applied not only to people who were currently institutionalized but those who are currently at risk of institutionalization. Even more significantly the court then said that the lower court''s decision that it was fundamentally altered the state''s program by requiring them to have this unlimited prescription drug for community services like they did for nursing was an improper analysis and the fact that the state put a cap on prescription drugs was reasonable, did not necessarily mean that it is a fundamental alteration and that a physical problem by itself or extending additional funds is not an automatic conclusion that it would be a fundamental alteration and therefore not covered by Olmsted. The quote that I have here in the materials is a good one, sorry, yes, here it is. If every alteration in a program or service that required the outlay of funds would tantamount to a fundamental alteration the ADA integration mandate would be hollow indeed. Basically, what this court does is disagrees whole heartedly with the prior cases that I mentioned saying that the fact that you have to put some money into the community that is different than what you are currently doing, should not automatically mean it is a fundamental alteration. You have to really assess overall the state''s programs. I think this is case one that hopefully others will be able to use in different states to maybe narrow the use of the state''s fundamental alteration argument as well as the Frederick case pending before the third circuit. The next case is the Garret case, the case involving whether the state is immune from a suit under the ADA. That case was a Title I case. Meaning, involving employment, and the state was sued by two state employees for employment discrimination. The Supreme Court ultimately said that you could not bring a suit in federal court under Title I of the ADA for employment discrimination seeking money damages because the state is immune from that type of thing. Basically they said that the state or that congress failed to demonstrate a legislative record that states have engaged in a long - standing irrational employment discrimination against people with disabilities, and that it wasn''t, didn''t warrant waving the state''s sovereign immunity and they couldn''t be sued for damages because the record was not strong enough. There are two positive things out of the Garrett case. One is even though you can''t sue the state for money damages, you can still sue state employees for non-monetary relief or what we call injunctive relief meaning a change in policy or treatment. So like a reasonable accommodation request that doesn''t involve, you know, damages would be something that would still be viable, even after Garrett. The other positive thing, I think, from the Garrett case, is that the court did not decide that this applied to all aspects of the ADA but limited their decision to Title I and left for another day Title II of the ADA, which involves state and local government services, which we will talk about in a couple of minutes. As far as the lower court decisions, since the Garrett case have come down, really where a lot of the litigation has been is not really on Title I, which is what Garrett case was about, because the court was pretty clear, if it is Title I and you are seeking money damages you can''t sue the state. If you want to sue the state for no monetary relief for employment discrimination you can. But where all the litigation has come post Garrett is whether or not it applies to Title II. So far only one court, the 9th circuit court of appeals has said that Title II unlike Title I is constitutional, and that states should be able to be sued under Title II for discrimination in the provision of government services. But the 9th circuit is alone, you have all the other circuits alone or saying that Title II is unconstitutional completely, and you can''t bring money damages at all for unequal treatment or you have a couple of courts, the sixth and second and first circuits that have said that, well, generally, you can''t bring suit against the state under Title II unless you meet certain conditions. For instance, the Popovich case said generally you can''t bring suit for unequal treatment but what you can do is bring suit under Title II against the state if your due process rights are violated, and that means you are not getting equal access to the legal system. In the Popovich case, it was failure to provide an interpreter for a plaintiff who was deaf. They found that the state could be sued because it applied to that person''s due process of law. The Garcia case said you can''t sue under Title II against the state unless you can show that the state had what is called a discriminatory animous, or basically, ill will towards the person, not just unequal treatment but there was some actual ill will towards the person in the state''s decision. What we are going to talk about after we take the first break in the questions is the case that is pending before the Supreme Court under Title II, the lane case, where the court will ultimately decide, it looks, on whether Title II is constitutional or not. A couple of things I wanted to mention, some states have in the wake of the Garrett case passed legislation where states voluntarily waive their sovereign immunity allowing them to be sued usually in state courts. Illinois just passed a law like that and other states are looking at that as well. The other thing that is important, I think, in the wake of the Garrett case is that some people are saying well I won''t sue under Title I or Title II, I will sue under section 5 0 4 of the rehabilitation act, which provides discrimination protection for people with disabilities when entities receive federal funding. Those cases actually have gone much better for plaintiffs. Nine of the circuit courts of appeals that have addressed this issue have found that states can be sued under section 5 0 4 because by receiving federal funds they are actually waving their right to be sued. There are a couple of courts, the second and fifth circuits, that have upheld the state immunity claims under 5 0 4 but most courts have found that section 5 0 4 is constitutional and you can sue the state under that particular law. I will move quickly with the last couple of cases. Then we will take a break. Chevron case basically raised the question if you are racing the defense of direct threat. Is it limited to threat to others or is threat to self, also something that an employer can raise. Basically under the ADA if an employer can show that the employee would be a direct threat it can be a defense in an ADA case, and the law says direct threat means direct threat to others. However, when the EEOC issued their regulations, they said it means threat to others or threat to self. So the question before the Supreme Court is, does the direct threat apply to threat to self. The chevron case it involved somebody with hepatitis c who was around chemicals. The employer said it would be a threat to that person to be in that environment, it was unsafe for them. Therefore we will not let them work in this environment. The court agreed with the employer here and said that the ADA did apply to threat to self as a defense, and they extended what the actual language of the ADA said and incorporated the EEOC''s definition. The impact of this case, I think, is to be decided. There have only been a couple of cases that have come out. The first one, the Orr case, is a bad case, in my perspective, in that somebody with diabetes who was working in a one shop pharmacy was deemed to be a threat to themselves because if their diabetes wasn''t under control, they would be alone and might hurt themselves with nobody available to assist them. This is a really, I think, paternalistic view about people with disabilities and people with diabetes specifically but they relied upon the court''s case and the Chevron versus Echazabal case to support their position. The Hammel case goes the other way and says that you can''t just say via direct threat, you have to actually show that the individual assessed whether they would be a threat to themselves and also evaluate possible accommodations that would reduce that potential threat. The other thing I want to mention on this case or this issue is that the threat to others is still something that courts have to look at. There is a recent case that got a lot of press involving Cirque Du Soleil, who was basically saying that a person with HIV who was a participant in the Cirque Du Soleil program was a threat to the other performers because of his HIV status. They did not do an individual assessment but made a broad view that somebody with HIV was not safe in that kind of environment even though medical science does not support that view. The Barnett case is a case involving reasonable accommodations and whether or not you can be re-assigned to a different physician when there is a seniority system in place that says that the seniority is the way you are assigned and basically the Supreme Court said that seniority policy generally is going to trump the ADA unless you can show special circumstances in which the seniority policy should not under the ADA reasonable accommodation should trump. So, while the court didn''t say that it always trumps it basically said it would trump unless you can show special circumstances like the employers not using the seniority policy and made exceptions for people without disabilities. Therefore they should allow somebody to get reasonable accommodation. There haven''t been a lot of cases under this case either. The Mays case is one, that I think, does extend it beyond even places involving seniority benefits. Basically in any case where somebody asks for reassignment, the 7th circuit says you are not entitled to be placed in a different job that you are qualified to do. You are only entitled to the right to apply for the job when a vacancy arises relying on the Barnett case saying the ADA does not require you to alter your employment practices for filling vacancies just because somebody asks for reasonable accommodation. I think this is a terrible, terrible case and really limits the options of people with disabilities to be reassigned as a result. The Shapiro case goes the other way, and says that when you reassign somebody and you have a conflict within your employment system, you can''t say there is a conflict, but you have to show that requiring the reasonable accommodation would be an undue hardship for the employer. So that puts an extra burden on the employer there. The last case, then we will take our break, is the Williams case, basically in that case, it was a woman who had carpal tunnel syndrome and was working in a manufacturing plant, the activities she was doing were exacerbating her carpal tunnel. She asked to be reassigned and ultimately was terminated after the reassignment was not permitted. She claimed she was substantially limited in a variety of activity including performing manual tasks. The question before the Supreme Court was, when you are deciding whether somebody is limited in the activity of manual tasks can you just show they are limited in the manual task they perform in their job or do you have to look more broadly. The Supreme Court said you have to look for more broadly, and they developed a new standard which said, basically that, you have to show that you are substantially limited in performing tasks that are of central importance to most people''s daily lives, that is the new standard, central importance to most people''s daily lives. This is a term the Supreme Court just made up, it is not in the law or any other cases. But what it does, when you bring a case, especially involving somebody who has sort of a border line disability, as far as proof, you are going to have to show not only substantial limitations and whether they are doing it at work but also in all aspects of their lives like brushing teeth, getting dressed, caring for themselves, combing their hair, things like that. So, you just need to put on as much evidence as possible in these types of cases. The case the courts have extended it beyond just performing the manual tasks. You will see in a case, there was a case of somebody who was lifting. They said while they were substantially limited in lifting at work they could still lift things at home, and it didn''t really impact their overall daily life and their central functions of life, and therefore they were not covered. The other case goes the other way showing that this person did show that they had substantial limitations both at home and at work, so they met the standard. So, basically, it is just important when you are bringing these kinds of cases to think really about all aspects of the person''s life and put in as much evidence as possible in showing how the disability affects your life and trying to show that you are substantially limited in a major life activity. So with that, I will stop and Robin, you can tell folks about asking questions.
Great. What we will do now is do some questions related to the information that has been provided. So we will ask Ryan to provide you with some instructions on how you might be able to do that.
All right. I will take it from there. We do have a question at this time. Go ahead and press the 1 key on your touchtone telephone. If your question has been answered or you wish to remove yourself from the queue please press the pound key. Once again, if you do have a question, press the 1 key.
First question, please.
Here we are. We have a question from Pam Jackson
Hi. Going back to the cases of mitigating measures, you listed several disabilities, would ADHD be one of them that would or would not be considered mitigating measure?
Did you say ADHD?
Yes. I list an attention deficit disorder case, I think there is others that involve attention deficit hyperactivity disorder. Those are cases involving people who use medication and as a result of the medication they are no longer substantially limited. Usually those cases involve substantial limitation and major life activity of thinking or concentration or something like that, and as a result of the
As a result of the mitigating measure, the medication they take, courts have found that they are not limited in those particular areas. So what people have to do in those kinds of cases is think about whether that is true, are they actually still substantially limited or not with the medication. If they are no longer substantially limited because of the medication, you can think about whether you have a record of a disability or maybe you regard it as a disability, and try that as an attempt, or potentially use state law instead of the ADA. For instance, here in Illinois, we don''t require that you show a substantial limitation of major life activity to be covered under our state discrimination law. So often times when people call us about cases and they use a mitigating measure, we recommend that they go under the state law rather than the federal law because the state law is better on that particular issue.
Another one, only if you can prove that the medication altered you completely?
Yes. The employer would just have to show that as a result of the medication, they are not substantially limited in a major life activity. You can still be limited somewhat, but if it doesn''t rise to, you know, a significant limitation, you may not be covered under the ADA.
You are welcome.
Next question, please.
Once again, if you do have a question, please press the 1 key. One moment for questions.
Well Barry, one of the things that I know gets so complicated, is these issues are so technical, and sometimes overwhelming to think about this case, that case, this circuit court and that circuit court. Overall when you look at what has occurred over the last 10 - 12 years in relationship to the ADA in the lower courts and upper courts, do you see any trends in regards to more education, at the court level, about some of these issues, or do you still think that it is a major problem in some of the rulings that we are getting at the lower court and higher court. Is this a lack of understanding of the complexities of the ADA and individuality of the ADA.
I think it is. The lower courts are generally applying what the Supreme Court has done, obviously some courts are going beyond what the Supreme Court has done, but the Supreme Court has really set the tone and taken very narrow views of most employment discrimination cases. If you look at the lower courts, most plaintiffs lose in employment discrimination cases. A lot of time it is due to cases that the Supreme Court has decided. They have taken a very narrow view of disability. What is interesting, is that when the ADA was passed, nobody really thought that there would be a lot of litigation on who is covered by the law, because under the rehab act, which was passed in the early 70, there was a lot of litigation but there was not much litigation where employers or defendants challenged whether the person was covered by the law. And so the defendants, when the ADA was passed really started this new argument and saying, well, maybe we can be successful in keeping people from being covered by this law if we can show that they are not a person with a disability. Unlike other civil rights laws, like for people with race discrimination claims or gender discrimination claims or national origin discrimination claims, you don''t spend a lot of time proving that you are covered by the law. You are a African American, or you are a woman or Latino of decent, or you have a certain religion. And then you go on to the underlying discrimination. Here with the ADA you spend a lot of time just proving you have a substantial limitation in major life activity and as a result of that extra arguing in litigation a lot of the cases never get to the actual discrimination that occurred.
Yes, that is the frustration, I think, a lot of people have. You think it is so easy to look at, but then you don''t realize sometimes that the courts will take a different view as what we might see as a black and white issue becomes very complicated.
Yes. Common sense, you would think that a person with epilepsy, diabetes, mental illness is covered by the law and then you have to decide whether they were treated differently or unfairly or not. But some cases don''t even get to that because of these other requirements.
Are there any other questions please?
We do have a question from Gina of Purdue University.
When you indicated that some courts are ruling that Title II is unconstitutional, is that only for monetary relief or also for injunctive relief?
That is a great question. I am glad you asked that. I wasn''t clear on that, was I? Yes, so far, the courts are really limiting these cases to cases involving monetary relief. In fact, no court has held that you can''t bring an ADA suit against state officials under Title II for injunctive relief. The 7th circuit had previously held that but in the last year they have reversed their decision and all the courts that looked at that said you can''t bring money damages, you can bring cases for non monetary relief against state officials.
Thank you. Hopefully that answered their question. Any other questions, please?
We have a question from Martha White of Illinois department of human services.
Go ahead, please.
Hi. This is Matt Abramson, hi, Barry and Robin.
In the Olmsted case, maybe if there has been any update, there was that famous clause in there about a state was supposed to develop a plan? To help move people to most integrated phases, do you see any trend, any states, out of Illinois, any movement towards that. Getting resources in community?
Yes, it is interesting that you bring that up. I think, just to clarify what the court said, the court did not require states to have a plan per se. What they said was that if a state did have a plan, that showed that people with disabilities were moving at a reasonable pace, then that could be used as a defense in cases brought under Title II, the Olmstead case. So while it doesn''t say that states have to develop a plan it says if a state does develop a plan that shows folks with disabilities are moving at a reasonable pace, they wouldn''t be necessarily liable under the ADA. As a result of that language a lot of states, including Illinois spend some efforts following the Olmsted case working on developing a plan and some things like that. Some states have taken a more active roll in developing that plan than others. What is interesting, matt, there really hasn''t been much litigation yet on whether the court, the states have developed an effective plan. It is usually whether or not the services that the states were seeking would fundamentally alter the services the state is providing currently. So, you know, health and human services has given a lot of technical assistance to states and advocates about what they think states should have, some states have developed good plans, others would probably improve what they have done and are still working on and it and others have not done anything. The plan issue is something I think a lot of people are working on both on state said, and the advocate side. But as far as really litigation, it hasn''t been much of a factor.
Does that answer your question?
Thank you, yes. I just wanted to know if there is any trend going. Maybe in Lincoln, is that redevelopment? Is that supposedly being more integrated by building, you know, ten unit homes or ten four - unit homes?
Let me clarify for those who are not familiar with what you might be referring to but in Illinois there was an institution that was closed for a variety of reasons in the past year or so, and there is a proposal for reopening it in a different fashion with a different configuration and such and that is the question that is being asked at this point. Does that meet the intent of the Olmsted legislation or can it be argued to be consistent or not consistent. I believe that is the question.
Right, yes. Certainly, advocates in Illinois do not believe that reopening Lincoln even in a modified form is consistent with the ADA or Supreme Court''s decision in Olmsted. Whether or not there is a legal theory to bring that forth, maybe that is something people are considering and thinking about. But generally the trend in most states is to be building fewer, not building new institutions but instead downsizing or eliminating current institutions. The fact that Illinois is building new institutions is certainly contrary to what other states are doing around the country, and also, least advocates have argued is contrary to the intent and spirit of the ADA and the Olmsted case.
Thank you. Any other questions, please?
I am showing no further questions at this time.
Okay, great. Barry, why don''t you go ahead at this time, then.
Great. Let us turn to the next page, section B of the outline. What I would like to do is briefly go over the cases that have been before the Supreme Court in this last year, and then talk about some trends and some new areas of cases that may go to the Supreme Court in the future. The first one is actually two cases together, the Hason case and the lane case, both involving whether you can bring a case under Title II against state for money damages. This is really, sort of what happens after Garrett. The first case, the Hason case was originally supposed to be heard by the Supreme Court this past year involving a gentleman trying to get a medical license and had been denied because of his mental illness. The 9th circuit found he was able to bring a suit under ADA Title II against the state but then asked the Supreme Court to review the case and they agreed. We thought this would be the case where Garrett would extend not only beyond Title I but also Title II and prevent you from suing the state under Title II for discrimination and prevention of state governmental services. Interestingly, you rarely see this but the California advocacy disability community did an amazing job, worked diligently to get the state to withdraw their appeal to the Supreme Court. Even though the Supreme Court accepted it, the state ultimately said we will not bring forth this claim. We will no longer claim sovereign immunity at least in this particular case and let the case go on to the underlying claim of discrimination. The Supreme Court wasn''t able to decide that case because the state withdrew it after excellent advocacy done by advocates in California. However, shortly thereafter, the Supreme Court did accept another case that brings this issue to the court involving whether Title II is constitutional, meaning can you bring a suit against the state for violating Title II when you are seeking money damages. This case I think has incredibly compelling facts. There is an old adage that bad facts make bad law like the Sutton case. This might be a case where good facts hopefully make good law. If you look at the underlying facts, they are really compelling and hopefully will be something that gives the Supreme Court pause before it further reduces the rights under the ADA. The case involved a couple of folks who wanted access to Tennessee court houses who were inaccessible, one was a court reporter who needed to be there for court proceedings but another compelling case was George Lane who had a criminal proceeding on the second floor and literally was unable to get to that proceeding. He refused to be carried, refused to climb the stairs. He did in the past. He said I am not going to do that. I don''t want somebody carrying me there. The judge actually found him to be in contempt of court by not appearing and he was arrested for failing to appear in the court. Despite the fact that he was unable to get there because of the barriers to access. So he and the woman who was the court reporter filed suit under Title II of the ADA saying that state had failed to hold proceedings in accessible court houses and therefore violated the ADA and they were seeking money damages for that failure to provide access. The good thing I think about this case is that unlike Title I, which did not have a huge amount of legislative history showing states discriminating in employment, there was a very extensive record put before congress before they passed the ADA of evidence of discrimination by the states in providing government services. It is not only talking about accessible court houses but you look at other state services like voting and problems that people with disabilities have had in accessing polling places or problems they have had in accessing education or problems they have had in the prison system or problems they have had in getting moved into the community from institutional settings. The legislative history that was before the court was much stronger in showing that people had problems. In addition, unlike Title I which goes to general employment involving some states and some private employers, Title II goes directly to state conduct, it goes directly to government activity. So constitutionally it is a stronger provision of the law, and it also involves constitutional rights, you know, employment discrimination is not really something that is based in any kind of constitutional right. There is no constitutional amendment that goes to employment. But there are constitutional amendment that go to the conduct of states that we are looking at under Title II. So for instance, the 6th amendment talks about access to, you know, being in court proceedings so that you can confront your witnesses or confront your accuser, and that is a constitutional right as well as a statutory right here under the ADA, or the 14th amendment, you know the right to vote and participate in a political process. That kind of thing is something that is grounded in the constitution and not just in the statute itself. So the argument here is that the court should not extend Garret and should find that Title II is much stronger constitutionally and therefore should be upheld in allowed for folks to bring cases and money damages. If you are interested in getting more detail, the Bazelon Center for Mental Health Law has all the briefs that were submitted in this case. I actually read several of them over the weekend. They are very compelling in talking about all the different legal arguments, their website is www.bazelon.org. If you go there you will see the link to the briefs, you can see what the defendants raised, you can see what the department of justice raised and advocacy groups raised as far as why Title II should be constitutional. That case is up for argument before the Supreme Court January 13. The briefs are in but the oral argument will be in January. We are likely to see a decision sometime in the late spring, early summer. The court has to make its decisions by the end of June when the term is over. This is one you definitely want to watch. We really I think will have a tremendous impact on what you can do under Title II. The other thing to remember is that the court did find that you can bring under Garrett cases against state officials for non monetary relief. Since the lower courts have also held that it seems that that aspect of the ADA should be safe and that really this case is going to go to, not just the injunctive relief, but to whether you can bring damages or not and because Title II seems to be a stronger aspect than Title I people are more optimistic for this case than they were for the Garrett case. And the other good news, as noted in the next page, in the Hibbs case, the Supreme Court recently upheld the constitutionality of the family medical leave act. So, unlike a lot of the past decisions they''ve made, where other laws were not constitutional, like the aids discrimination act and violence against women act. The court finally did find one state or one statute constitutional and hopefully that is something they can extend to the lane case. The next case I wanted to mention was the Clackamas case. It is an employment discrimination case that was decided by the Supreme Court earlier this year. Basically it was trying to determine when you are talking about bringing employment discrimination case, who is an employer? How do you decide who an employer is, who is covered by the law. If you remember the ADA covers employers who have fifteen or more employees. In the Clackamas case you had four physicians who were also shareholders in a professional corporation. The question was whether they were employees or not. If they were considered employees, then the defendant would have had more than 15 employees and, therefore, covered by the law. If they were not considered employees they would not meet that 15 employee threshold and therefore would not be covered by the law, so what they were trying to find out is how you decide if somebody is an employee or not. What the Supreme Court did is adopted basically what is called a control test that was issued by the EEOC. It has six factors that are listed here in your outline. You just have to weigh those factors in determining whether or not the person is an employee or not. So whether or not that person you are looking at can fire or hire other people, whether or not the organization supervises that person''s work, whether that person has to report to somebody higher in the organization, whether or not they are able to influence the organization, whether or not there is any intention for them to be considered an employee because of contracts or agreements that are available, and then whether or not the individual shares and profits or losses of the organization. And then after you weigh all those different factors you decide whether the person is an employee. If they are an employee, then they are counted within that fifteen of whether they are covered by the law or not. And, you know, this case seems really technical but what was interesting, I think, that what was pointed out was in one of the briefs that was filed in this case, is that 430,000 employers in our country have between fifteen and nineteen employees, and that constitutes about 3 million workers. So what it means is that there are a lot of companies that are just right on the borderline of the ADA coverage, and if a person is not considered an employee, because of those factors I mentioned before, they may be eliminated from ADA protection. So while it is a rather technical case, I think it could have a significant impact. It will be interesting to see how lower courts apply this control test that I mentioned. The most recent court case the Supreme Court decided under the ADA is on the next page, Raytheon versus Hernandez case. This is a case of an employer not rehiring people who had been terminated because they violated some sort of policy, had engaged in misconduct. This particular employee had been terminated because he had tested positive for cocaine. He got clean, then a couple of years later applied to go back to work for Raytheon. He was denied that position, because of this policy of not rehiring people who had been fired for misconduct. The question was whether or not that was discrimination under the ADA because as a former drug addict, he was covered under the ADA because he was no longer using was claiming he was discriminated against because of his record of past drug use and past disability. The court said that Raytheon had not discriminated against him because what they had was a policy neutral on its face. Didn''t engage in disability, but said if you engage in misconduct you can''t be rehired. They had a legitimate reason for doing that. It was not based on discrimination. It was based on not wanting to rehire people who had been inappropriate in the workplace in the past. What is unfortunate in this case is that the plaintiff did not bring forth what is called a disparate impact claim. Under employment discrimination law if you can show that a neutral policy has discriminatory impact on a protected class, like people with disabilities, then it is possible that a neutral policy can be considered discriminatory, even if it doesn''t, on its face, look like it is intending to discriminate. If it has the impact of discriminating against people, like a policy like this would potentially impact people who are former drug users and discriminate against them, that would have been a viable claim. But the Supreme Court said that wasn''t raised appropriately by the plaintiff in this case, and, therefore, was not something that they were going to consider. The good thing, I guess, is that the Supreme Court said that claims were disparate impact can be brought under the ADA. There haven''t been a lot of those cases brought. This is consistent with other civil rights laws where cases or policy that employers have, have disparate impact against African Americans or disparate impact against women. So these kinds of cases are possible but since it was not raised by the plaintiff the court said they didn''t have that argument available to them. Since the employer hadn''t acted directly against the person, basically just enforced a neutral policy, there was no liability for the plaintiff here, or no liability against the defendant. The last case was before the Supreme Court this past year. They actually didn''t take. But I thought it was an interesting case and may be something that is raised in the future. This is a case in California and against the city of Sacramento for not making sure that its sidewalks were accessible. And what the district court said was that plaintiff couldn''t bring a claim for sidewalk accessibility because if you look closely at the ADA, it really just speaks about the local governments responsibilities for curb cuts and did not talk expressly about sidewalk obstructions like benches and sign posts and the like. And so they said that since the ADA doesn''t cover sidewalk accessibility expressly then you couldn''t bring a case under the ADA for that type of violation. The 9th circuit, which is the appellate court in California said, no, it doesn''t make sense, it doesn''t make sense to say that you have to have accessible curb cuts but then the actual sidewalk itself is inaccessible. When Congress passed the ADA they wanted access for people with disabilities and curb cuts gets them on the sidewalk and we want to have a clear path of travel, and that local governments should be responsible for not only making sure there is good curb cuts but also sidewalk access in general. The city of Sacramento then appealed or asked the Supreme Court to look at the case, as you may know the Supreme Court doesn''t take many cases at all they only take a fraction of the cases that are appealed to them. Ultimately the Supreme Court decided not to take the case after the department of justice weighed in favor of the plaintiff here. So as a result, the 9th circuit decision saying that sidewalks are covered by the ADA stands, but it was an interesting case that almost got to the Supreme Court if they had taken it. What I would like to move to now in the last remaining minutes, then we will open it up for questions again what I have identified as emerging issues, these ones that are not in front of the Supreme Court yet but sort of bubble willing around in-bubbling in the lower court and may get to the Supreme Court eventually but are racing interesting issues in the application of the ADA. The first issue is what I have entitled disability harassment. People are properly familiar with the term sexual harassment in gender discrimination cases where people are harassed because of their gender. Well, often times people with disabilities are harassed as well because of their disability. While the ADA doesn''t expressly state disability harassment as a component people are raising that as an aspect of their discrimination claim. Thus far courts have been finding that you can bring a claim for disability harassment. The Flowers case, for example, of somebody whose HIV in the workplace who was discriminated against and harassed because of her HIV status and the court upheld her right to bring that claim of disability harassment. The Fox case is another example of somebody with a back impairment who experiences an extreme hostile work environment not only by his co-workers but also by his supervisors and the court said that was actionable under the ADA as well. Basically the courts have adopted a five part test in deciding whether or not there has been harassment that you have to show. First you have to show that you have a disability and that you are qualified to do the job. And then that you were subject to unwelcome harassment, then you have to show that the harassment was based on your disability, not just because the person didn''t like you or something like that. Then you have to show that it wasn''t just sort of a little bit but that it was actually severe and pervasive and really affected your job, altered a term or condition of your employment. So, it cannot be just a casual remark but it has to be something that really or significantly impacted your work. Finally that the employer either new about the harassment or should have known about the harassment and didn''t do anything to change that situation. A second emerging issue is working at home as a reasonable accommodation. A lot of employers are adopting telework policies. The EEOC just issued a new fact sheet on this issue for employers to create a tele working policy that says that if you do have one that you have to allow people with disabilities to participate and then make modifications to the policy as part of the reasonable accommodation process. They also said that even if an employer doesn''t have a tele working policy if that is a possible accommodation request that the person with the disability is seeking, the employer has to consider that. The EEOC fact sheet is great. I think it is very helpful and very proactive towards people with disabilities. I''m sorry to say though the courts have not been nearly as progressive in their view and taken a rather narrow view of employer''s obligation to accommodate people with disabilities. You will see things like in the sixth circuit, what they call an exceptional case for working at home to be appropriate for a person with disability. The seventh circuit saying it would be an extraordinary case. The Vande Zande case, the Rauen case also found it unreasonable for somebody to work at home because of the importance for them to be at the job. The 8th circuit had a couple of cases that could be reasonable accommodation, right after they issued that decision they found it would be an undue hardship for an employer to have somebody work at home as an accommodation. Obviously these cases are specific. Certain jobs where being in the office is more important than other jobs, but in general I think employers have taken a narrow view on when somebody with a disability can be accommodated by working at home. The next emerging issue is often entitled being required to be whole or 100% healed as a condition of returning to work. Often times, people with disabilities have to leave the workplace and then want to come back. A lot of employers are adopting these new policies that say before you come back you have to have evidence that you are a 100% healed and that you have no recurring symptoms or substantial limitations. The courts have actually been very progressive in these cases and found that employers using these policies are really violating the ADA because what they are doing is they are not really evaluating the person with the disability, whether they can do their essential functions. They are just saying you have to be 100% healed or you can''t come back. The component of the ADA says some folks may need assistance in the workplace and these 100% healed policies are saying you have to come back without any kind of assistance or accommodation. These are, I think, really positive decisions for people with disabilities. The next emerging issue is the ADA''s application to temporary workers. There haven''t been many cases on this. I don''t know if there are even any reported decisions, but there is a settlement in that case that I thought it was pretty interesting, so I wanted to bring that up. The EEOC, if you read their guidance on this issue, have said that temporary workers are also covered by the ADA, not just people who are actual employees. Thus, if you use a temp agency and have a worker who has a disability you are subject to the ADA''s requirements, at least that is what the EEOC says. There was a recent case here in Illinois where somebody who was a temporary worker came to work and had an incontinence problem and needed an accommodation to address that problem and the employer basically said, you know, they weren''t going to address that problem or accommodate them, and refused to let them come back to work, even though they were able to do the job once they addressed the problem. There wasn''t a decision in that case, it ended up settling but settled for the worker getting $150,000. I think the employer saw this was not a strong case and that the employee had been treated discriminatorily. The next issue I think is really a hot issue. There has not a lot of litigation, but I think it is giving our expansion and technology and how people access services, important and that the ADA''s application to websites. Basically there are two major cases that have come down so far, one in favor of the ADA''s application and one against it. The first one, the Martin case is a Title II case involving access to information from transit authority in Georgia, and they said that Georgia failed to provide equal access to people with visual impairments, people who are blind under Title II and the fact this they did not have accessible information on their website was a violation of Title II and so you could sue for that issue. On the other hand, there is a case against Southwest Airlines out of Florida where the person who wanted to fly on southwest airlines was not able to get the information they needed on the website because of accessibility problems, and the court in Florida said that the ADA did not apply to websites for private businesses. They said they don''t exist in the geographic location. There is not a physical location. The website doesn''t, you know, is not a business where you can get in and out of physically, and that is what Title III was intended to cover. That case has been appealed to the 11th circuit court of appeals, and the briefing has gone forth. I don''t think oral argument has happened yet. But that is one to definitely watch. Some people feel like thighs two decisions, even though they go different ways, is explainable and that Title II covers program access whereas that is not required in Title III. So program access is broader and that to provide access to your program isn''t just limited to physical access but goes to getting the information out to folks, and so the Title II claims are actually stronger for website accessibility than Title III claims would be. The next issue is retaliation as a cause of action. As folks may know, when you file suit under the ADA, often times an employer, because you have exercised your civil rights by either filing with the EEOC or filing in federal court can take even additional adverse action beyond what they did that caused you to originally file. The ADA like other civil rights saw says if you are retaliated for exercising your civil rights that is a cause of action by itself. What happened under the ADA that raised a question in litigation, what happens if a person files a claim under ADA for employment discrimination, the employer subsequently retaliates against them so maybe they fire them because they filed with the EEOC, and then later it is proven that the person doesn''t have a disability because they can''t show substantial limitation of a major life activity. Can you still bring a retaliation claim? Well at least one court has said, yes, you can which I think is the right decision, because basically, what you are doing in that kind of case is trying to hold the employer liable for basically treating somebody adversely because they are exercising their civil rights. So the fact that in the underlying case, they aren''t able to prove that they have a disability and therefore can''t go forward with what the original case was, they should still be able to go against the employer for the retaliation claim because they are being treated adversely because of their exercise under their civil rights, not because they have a disability per se. So that is an interesting case, and I think hopefully is one that other courts will adopt when people bring retaliation claims. It is pretty important, because in so many cases, people are found not to have a disability. So to be able to continue, despite the fact that you are not having been found to have a disability is good news for people of disabilities, I think. The last emerging issue, I think, if I had to say what case I think will go to the Supreme Court next, this is one I think that probably is pretty ripe. This is about movie theater access under Title III. The department of justice has issued regulations, and Title III, that requires places that have public viewings and performances like movie theaters and auditoriums to provide what is called a comparable line of sight. What these cases do is question what exactly comparable line of sight is. In the last decade or so it seems a lot of movie theaters have moved to stadium seating. Usually the way it is designed is you can only get to the stadium seats by walking up stairs. There have been some innovative designs where the entrance goes to the middle of the stadium so people with disabilities can access the seats and some have had elevators but for the most part you have to walk up stairs to get to the stadium seats. In the stadium seats, the stadium, they are much better, and if you can''t get a stadium seat you are in the first few rows where the angle in looking up to the screen is not very desirable, you have to crane your neck and you are very close to the screen. So people with disabilities have sued saying that is not a comparable line of sight. The first case that was decided was out in Texas, the 5th circuit, the Laura case, when the department of justice said comparable line of sight they were just talking about unobstructed view. And if you are in those lower front view seats you don''t have an obstructed view. There is nobody in front of you. That meets the requirements of the ADA. However in the last year, two cases, one in the 9th circuit in Oregon, another in 6th circuit that held the other way. The Oregon case specifically said that when we are talking about comparable line of sight, we are not just talking about an unobstructed view. We are talking about a comparable view of the screens and that if you are in those first few rows and not in the stadium seats you do not have a comparable view and therefore it is a violation of ADA. They won that case and actually Regal Cinemas asked the Supreme Court to look at the case. They filed a petition in October and the Supreme Court has not acted yet. We are waiting to see if they took that case. Since then the 6th circuit also said that the department of justice regulation doesn''t mean just unobstructed view. They didn''t go as far as the Oregon case. They said let us send it back to the lower court and have them develop the facts a little more. They did reject the Texas case view in saying that when you are talking about comparable line of sight it is just unobstructed view. They said it is more than that. So, you know, I think this is something that because you have a conflict between the circuit court of appeals, the Supreme Court may be interested in trying to resolve that in the right way. It seems like the reasoning in the Oregon case made more sense but because of the financial implications of having to retrofit stadium seating it may be a tough ruling for Supreme Court to rule in favor of people with disabilities. It is definitely something to watch. So with that, Robin, why don''t we open it up for questions for the remaining time.
Sure, you have given us a lot of information, I am sure people in the audience are overwhelmed at this point but let us see if we have additional questions or clarification to provide. Ryan, why don''t you go ahead and open it up for questions please.
Sounds good, once again if you do have a question press the 1 key on your touchtone question. First question is from Don in upstate Alaska, ADA.
Regarding the 100% healed cases that you cited with yellow-I guess it is a multi-fold question, what prong of the statute did they bring to get standing to bring these cases, and, can you give us, like the back condition sounds kind of wishy washy in some respects, and I guess the other part of this is, the outcome of this is that you have to use, you have to consider reasonable accommodation when you are looking at bringing someone back that may have an ADA qualifying condition?
Right. I mean, I think people in these cases probably raised both actual disability prong as well as the regarded as prong, some of you raised the record of disability prong, I haven''t read these cases in a little while so I don''t remember specifically on these cases. Generally what they are requiring is that you have a note from your doctor saying you are 100% healed, you don''t have any residual effects for the condition why you left. While you certainly, I think, under the ADA employers would be allowed to require the person to have some sort of doctor''s note that demonstrates that they can do the job, and that they are, you know, not a threat in the workplace, those kinds of things to say that somebody has no residual conditions and that the employer isn''t going to consider reasonable accommodations is for the courts have had a really hard time. I guess what these cases go to is the ADA silver spring requirement of individual assessment, and really looking at the person, and whether or not in light of, you know, where they are with their disability and in light of their desire to return to work is a way to make that happen with or without a reasonable accommodation and that these policies basically skip that requirement, they individualize assessment and just have the sort of broad stroke of, you have to be completely healed or you can''t come back at all without evaluating what might be able to be accomplished in the workplace.
So you are saying that their standing that-all three prongs?
I think they potentially could. Whether or not they raised all three prongs in these cases, I don''t know for sure. Because they had been impaired in the past, a lot of times when somebody is coming back from an injury, they may or may not be currently impaired and so, the fact that an employer is not allowing them to return might be regard as claim or not allowing them to return because of past disability could give rise to a record of claim as well. Some people when they do return do have substantial limitation, could have standing under the actual disability prong as well.
One of the reasons I asked a question, I remember reading the material a little bit earlier, I thought you made a statement that the regarded as prong for bringing a complaint was almost impossible?
Well, it was regarded as when we are talking about working.
I didn''t make that clear, yeah. Those are where the employer regards you as unable to do your current job but not regarding you in the broad range or class of jobs, which is the requirement when you are bringing the major life to working. But return returning to work could be regarded as unable to, you know, perform the major life activity of lifting or, you know, walking or a variety of things where regarded as would be more successful. When you are racing working as regarded as, it is very, very difficult.
Fine, thank you very, very much.
Thank you. Next question.
Our next question is from Martha White of Illinois department of human services.
On the movie theater access, are there current obligations for theaters to provide listening devices and captions? Or is that an issue that is kind of going through the court too? Or that is pretty much just limited to the line of sight and wheelchair access?
I haven''t seen that in actual litigation. I know there were trend cases filed in this issue but I don''t think we have any reported decisions. Robin knows a little more about that than I do. But generally Title III entities have a requirement to provide auxiliary aids and services, so an argument could be made that theaters and places where performances are being held are required to provide assistive listening devices, I mean, you have a requirement where theaters are now providing interpreter services and those kinds of things. Department of Justice has gotten involved and issued some regulations that talk about or some guidance that talks about the requirement to provide those kinds of auxiliary services. You see a lot more of venues providing that. I know like the Schubert Theater in Chicago, you can go up and get assistive listening device, theaters in Chicago are providing captioning, audio descriptions, sign ladies and gentlemen interpreters, those kinds of things. There hasn''t been a lot of litigation as far as the extent of that. I think where interesting litigation could come up, let us say a theater has signed interpreted performance on, you know, particular date. But that is a date that somebody who is deaf can''t go, they want to go to a different. They say can you provide a sign language interpreter at this other, not the one that you have designated as an accessible performance; would a Title III entity have ability to do that? That would be interesting litigation. We haven''t seen that. They would have to provide something in general. But whether or not they can limit it to certain performances or not I think something that courts would differ on.
Yes, there has not been a huge amount of litigation in the area. We have a lot of communication litigation but most of that has been in the area of medical, few settlement agreements with some of the major, like, radio city music haul things but included some aspects of communication but not to the degree that it has a huge amount of precedence in this area, unfortunately. Next, we are almost at the end of our hour, unfortunately. I am sure there are a ton of questions out there that people might have that unfortunately have not been able to answer, just due to running out of time and dealing with huge issues, such as this. Unfortunately we will have to end it for today. Just as a reminder, you will be able to access a recording, audio recording of this off of our website, as well as an edited transcript from our website at www.adagreatlakes.org questions outstanding should be sent to your regional disability assistance center. 8 0 0 9 4 9 4 2 3 2 both voice and TTY. In addition, I think that Barry has referred you to the protection advocacy agencies in your own states with additional clarification and assistance. To locate those, you can do that from the napas website, which is www.napas.org. I would like to thank Barry at this time for spending his day with us, at least part of his day, discussing this very important topic with us, hopefully you have all gotten something out of that. Our next session is scheduled for January 20 of 2004 and will be held from 1:00 p.m. To 2:30 p.m. for central time. That session will be held, and will focus on employment issues. It is an ask the EEOC schedule session with Sharon Rennert from the EEOC. She has held discussions in the past. It will not be specific to employment but Sharon will open it up for questions, she will give us a brief update on some of the issues the EEOC has been involved in prior to opening it up to questions from the audience, hopefully you will find that valuable. For more information regarding that please contact again your regional office. At this time I would like to close the session and thank every one for your participation. Thank you very much.
Ladies and gentlemen, this concludes today''s conference. Thank you for your participation and you may disconnect at this time. Have a wonderful day.