All right, thank you very much Kimberly and welcome everyone to the brand new season of the ADA conferences 2005-2006. Once again this year we have an excellent schedule of audio sessions. I would encourage you to visit the ADA-audio.org website to find out all of the information regarding the upcoming schedule. The schedule has been updated with additional information regarding descriptions of the sessions as well as speaker information, or information about the speakers for the session has also been provided. For the upcoming session in November, the online registration should be up and running and you will be able to register online for the, for that session as well as the remaining sessions for the 2005-2006 audio conference session. So please visit the website to check and see when that information will be available. We apologize and thank all of you for registering the sort of old fashioned way, filling out paper registration forms and sending them to us. The ADA audio conference series is a collaborative event and effort of the ten regional technical assistant centers, also known as the ADA and Accessible IT centers. You may reach your regional ADA center by calling 1-800-949-4232 if you have questions regarding the Americans with Disabilities Act. Today we are going to discuss and provide an ADA legal update and we are joined, again, by an individual who has been with us many times in the past, and an outstanding speaker on the topic of the courts and legal issues and trends with regards to disability law, and we are joined today by Barry Taylor, the director of legal services with Equip for Equality, out of Chicago, Illinois. Equip for Equality is the state of Illinois'' Protection and Advocacy service. For today''s session, Barry is going to speak first. Barry''s going to first talk about the Supreme Court cases and then we will open it up for a question and answer period, following that, Barry will provide some information about other legal trends regarding the Americans with Disabilities Act and disability law and then we will wrap up with a question and answer session at the end. As part of the new audio conference series, there are three ways to participate, and would encourage people to be patient when asking questions. We will be getting questions over the phone. We will also be getting questions from the captioner, who is providing real-time text streaming, and we will also be getting questions from individuals who are participating for the first time ever receiving audio streaming through their computer. So there are three different modes of individuals asking questions, beginning this month, so please be patient if you don''t hear an answer to your question. And as always, if your question doesn''t get answered, you always have the opportunity to contact your ADA and IT center at 800-949-4232. Without further ado, and so I don''t call him the wrong name again, I would like to introduce Mr. Barry Taylor.
Great, thanks a lot, Peter. It is a pleasure to be back on the ADA conference series. I always enjoy doing this and I think it is a great way to get a lot of information out to a lot of folks. One thing I wanted to mention is Peter indicated that I work for the protection and advocacy organization in Illinois, and for those of who you aren''t familiar with the protection and advocacy system that is out there, every state has a protection and advocacy organization that provides free legal advocacy services to people with disabilities. And if are you not familiar with the protection and advocacy agency in your particular state, one way to find that information is to contact our national association, which has recently been renamed the National Disability Rights Network, or NDRN. Contact them either on the web at www.ndrn.org, or you can give them a call, 202-408-9514 and they can give you the contact information for the particular protection and advocacy agency in your state. As Peter mentioned, what we are going do today is first talk about a few cases the Supreme Court has decided under the ADA over the years and not spend a lot of time talking about those cases themselves, because I know a lot of you have heard about those cases before, but also look at the cases that have been decided since those cases have come down by the lower courts and see what impact the Supreme Court cases have had on disability law. And what is interesting is that certain cases, the Supreme Court will decide a case and there will be very few cases subsequently. Then in other situations, there will be a lot of lower court decisions interpreting that Supreme Court case. We are just going to do a quick review of those cases that have come down in the last year or so since the last time we gave a presentation on an audio conference. Then we will stop and take questions and then we will look at some emerging issues that aren''t necessarily ones that have been before the Supreme Court, but are ones that are percolating in the lower courts that may end up at the Supreme Court down the road. Let us first turn to the Supreme Court cases. You should have received an outline that lays out this information. I will be referring to this outline as we go along. And if for some reason you don''t have this information, Peter can give you instructions later on how to get that information. So the first case in the outline, and is the most recent case the Supreme Court has decided on the ADA, and that was Specter versus Norwegian Cruise Line. That involved the applicability of the ADA, specifically Title III, which covers discrimination and public accommodations, private businesses that are open to the public, whether foreign flag cruise ships are covered by Title III of the ADA and in this particular case, you had some individuals who had identified some physical barriers on ship that denied them access to a variety of things, including emergency evacuation equipment, and different types of facilities, including the ship''s restrooms and pools, elevators, restaurants, that type of thing, as well as certain cabins that were more desirable, but weren''t accessible. The ship was also the cruise line was also charging a higher rate for the accessible cabins and also charging passengers with disabilities a certain premium to receive assistance from the crew that was related to their disability. And this is an issue that got before the Supreme Court after the lower courts really had been in conflict and ultimately this has been the case that went up. I think there have been four different appellate court decisions; two going in favor of the ADA saying they applied to these kinds of ships and two that didn''t find that the ADA applied. The Supreme Court ultimately decided this case last summer and what they held was that passengers with disabilities really should have the same expectations of protection under Title III of the ADA as visitors to any public accommodation and commercial facilities in the US. And the fact that it was on a ship really shouldn''t make a difference as to whether the ADA applies or not. That is sort of the baseline of the case, is that the ADA does apply to cruise ships, even if they are not US owned and foreign flagged. It wasn''t a situation where the court said, you know, everything that people with disabilities identify as a barrier is something that is going to be deemed discrimination, because as we all know, under Title III, there is issues of readily achievable barrier removal and that analysis, the court said, would apply, for ships as well. And they said that in many cases, especially if you are changing policies and procedures that have discriminatory impact on people with disabilities, that shouldn''t be anything that is an undue burden upon cruise ships, but that there may be cases when you are talking about removal of physical barriers that could interfere with internal operations and if for some reason making those types of changes would somehow bring the vessel into noncompliance with international safety standards, then it may not be a readily achievable barrier that would be required to be removed. And so I think one thing to say in this case is that we just don''t know specifically what, to what extent some of the barriers, the ships are going to be able to, or have to remove based on any claim they may make that to remove those barriers would somehow take them out of compliance with international safety standards. So the Supreme Court did not decide those specifics and indicated that is really a case by case decision that courts are going have to look at. But I think the broader, most important thing in the case is these entities are covered by Title III and that in many cases, the problems and barriers identified really had to do with policies and procedures that adversely impacted people with disabilities and that those should be changed in a general form, unless they can show somehow that would be a problem that would unduly interfere with internal operations. And at this point, the case is so new there really aren''t any subsequent cases that have been decided by the lower courts for us to discuss. But perhaps next year there will be some new cases and, again, sometimes these cases have a lot of cases that come down after the Supreme Court decides and other times very few. And because this one is a fairly specific to cruise ships, it may be one that doesn''t have the broad impact some of the other ADA Supreme Court decisions have had. Contrasting that is our next case we wanted to discuss, the state of Tennessee versus Lane and that case has generated a lot of litigation since the Supreme Court made its decision. It is not a surprise because this was really a key, important case as far as now it really is going to impact a large spectrum of people with disabilities. The case, state of Tennessee versus Lane, which I am sure many of you remember, was decided in 2004, involved the issue of access to the courts, and whether if somebody with a disability was denied access to the court, whether they could sue the state under Title II for money damages in federal court. As people might remember, there was a case decided by the Supreme Court previously called Garrett, which looked at whether you could sue the state under Title I for money damages and this with us going to the next part of the ADA, Title II, and Title I in Garrett, the court said you can''t sue for money damages and found there really wasn''t a strong enough history of discrimination by states in the employment context to warrant making them subject to money damages. The court said you could still get non-monetary relief like injunctive relief, say reasonable accommodation, but you couldn''t get money damages. The question was whether the Supreme Court would apply the same standard and find states weren''t liable for money damages in Title II like they did in Title I because the court really hadn''t decided that in the Garrett case. They left that to another day. Interestingly, the Supreme Court found that Title II was different, at least with respect to access to courts. This case had very compelling facts. You had you one gentleman who was not able to get to a court appearance because of inaccessible courthouse. He had to literally climb up the stairs in one case and then he refused to climb up the stairs and they said they would carry him and he denied that option, and ultimately was held in contempt for not showing up in the court proceeding. Another woman who worked at the court or who wanted to do court reporting service at the inaccessible courthouse and couldn''t get in; So these were very real situations, people being denied access to very important aspects of their life. And the Supreme Court in looking at Title II said there was a much stronger history of discrimination by states under Title II than there had been under Title I. They looked at access to the courts, but they also looked at access of other things, like voting and discrimination by states with respect to prisoner rights and education, institutionalization and that type of thing. They found that at least with respect to access to courts, states should be held accountable and if they are found of being discriminating against people with disabilities, they should have to pay money damages that those people would be entitled to. And interestingly though, in a 5-4 decision, the Supreme Court did not go beyond the specific facts of this case and said at this point we are just deciding access to courts. We find that to be a very important fundamental right and involving due process and we are going to wait till another day to look at some of the issues under Title II that don''t relate to access to the courts. So that is really where the Supreme Court left it. Since then, the Supreme Court has agreed to take another case, which I will explain in a second. Let us go through some of the other decisions that have been decided since the Lane case in 2004. You will see they are grouped in different subject matters. The first one is another access to the court case from the first circuit. That is clearly, because it also involved access to courts and had similar fact patterns, even though the person was hard of hearing instead of having a physical disability. The court still found that the decision in Lane would apply and that this person could file a suit for damages under Title II. The next group of cases is the context of prisons. People might remember that the Supreme Court, one of the first ADA decisions it decided, was a prison case called the Yesky case. The question was whether or not the ADA even applied to prisons at all. The court found affirmatively that it did apply to prisons, but did not decide whether or not you could get money damages if you are discriminated against in the prison context, so that is an open issue. You will see here in the cases that the courts have gone a variety of ways. The Miller case, the first one listed here, involved pretty outrageous facts as far as what the particular prisoner was subjected to. He is a prisoner with paraplegia and the prison officials really failed to accommodate him at all in prison, and he was not able to have access to toilets and showers and they refused to provide him with catheters and medical care and it was just really a horrendous situation and the 11th circuit, which covers the southeastern part of the country, refused to extend Lane''s courthouse case to the context of prisons. And there was another case that is not actually a recorded case you can read, but it is called Goodman versus Ray where the court has similar facts and found the same way. What happened with that Goodman case, why it is important to note, is that that case, the plaintiff asked the Supreme Court to look at it and that is the next ADA case that the Supreme Court will be reviewing, which is Goodman versus Georgia. And oral argument in that case is scheduled for November 9th, next month, and it will be interesting to see really what the Supreme Court does with respect to whether it applies Lane beyond the courthouse scenario into the prison scenario. Again, the facts are very compelling in this case and it will also be interesting to see if, how the new court that is being formed right now applies Lane, given that we have a new Chief Justice and will likely have a replacement for Sandra Day O''Connor soon, who was deemed a swing vote in the Lane case. There have been other cases that have been decided under prisons. You will see a whole listing of them. The Pfeiffer case is probably the most important, in that it decided the other way, out of the 9th circuit and found that prisoners can sue for money damages under Title II. And then you will see the other cases that are listed here, Haas, Cochran, Bain and Hill. All of those cases found that for a variety of reasons, found that you could not sue for money damages in the prison context. In many cases, finding that the prison context was not as fundamental a right as access to the court was in Lane. The next grouping is education cases. You will see a variety of education cases. They really are going back and forth. Again, most the cases that found that discrimination in education under Title II isn''t something you can sue for money damages for really rely upon the fact that they don''t believe that education is a fundamental right. It is not as core and central to our country and doesn''t involve due process like access to the courts do. So that was really the reason in the McNulty case and the Johnson case that is there. There have been two cases in which Lane has been extended to the context of education. One would be on page 4, the Association for Disabled Americans versus Florida International University, and they in that case did say that the university was subject to money damages when they failed to accommodate students with disabilities. And then also the Constantine case out of the 4th circuit, which is sort of Mid-Atlantic States, and that case they said that Lane also should be extended to higher education and the state was not immune to money damages there. Testing accommodations is the next group of cases, and really in those cases, courts have not found that it really is a fundamental right and something that should extend money damages to, like they did in Lane. And so those are cases that the plaintiffs have lost. Disability services, you will see another couple of cases there, and both of those cases involving one access to mental health services and the other, access to community services for people with developmental disabilities, they were also not entitled to money damages in those cases. And then the last couple of groupings of cases on page 5, employment, we have a split. There is a case out of New York which felt that the defendants'' actions were so willfully and egregious that they should be held liable for money damages. That is interesting because you would think that the Garrett case we discussed before, which involved employment, would have precluded the court from going there. But at least this particular trial court found that money damages were available and employment, thus this case gives more of the expected result, I think, in that they did not think an employment case should allow money damages based on the Supreme Court''s previous decision in Garrett. And then the last case listed here is a public event case. Somebody was denied access to a public auction and they said that it did not apply beyond access to courts. Lane was limited to its facts. One thing I just wanted to remind people is that these cases are all about whether or not you can get money damages in federal court. That does not mean that you still can''t sue a state as a person with a disability if you have been discriminated against under Title II. You can still move, bring a lawsuit that is seeking money damages -- excuse me, seeking non monetary damages. It is just that you have to sue a state official and you have to seek what is called injunctive relief. A lot of community integration cases brought under Title II aren''t seeking money damages for the plaintiffs, but instead are seeking for the state to change the way it provides services and that would be considered injunctive relief and those cases are proceeding under Title II, despite the fact that some limitations have been made against the state, cases seeking non-monetary damages can proceed against state officials under Title II. Moving to some of the older ADA cases the Supreme Court has decided, I just wanted to highlight a few that have had some significant rulings. The first one is the Bragdon case. As people might remember the Bragdon case involved a woman with HIV who was discriminated against by her dentist in that he did not provide her services like he provided other people without HIV, and she had stated that she was covered by the ADA because she was substantially limited in the major life activity of reproduction. And what has been interesting is that case, while it seems pretty narrow in its facts, has actually had a lot of lower court decisions. The Worster case listed here indicates that even though somebody with HIV has been covered by the ADA in the past, it is very important to explain why they are substantially limited and that just relying upon the fact that you are HIV positive is not necessarily going mean you are covered by the ADA. Its not a per se disability, you still have to show the substantial limitation. In fact, in this case, the plaintiff testified in a way that you would think undercut the argument that he was substantially limited. The Fiscus case listed here, I think is an interesting application in that it involved somebody with a kidney condition, who had to come up with a major life activity they were limited in, as a result of having to undergo dialysis while working at Wal-Mart. They came up with the major life activity of cleansing of the blood, which is certainly an issue for people with kidney disease, but is not necessarily something that you would think of as a major life activity off the top of your head or that is been listed in any of the initial regulations that were put out. By the court here said that it did apply and the reason they relied upon Bragdon is they talked about it doesn''t have to be something that is daily or public in nature. It can be an involuntary activity; major life activity doesn''t have to be one that everybody does every day, voluntarily, like walking or something like that. Instead, it can be an involuntary activity that is not public or a daily character. Moving on to page 6, the case probably that has generated the most litigation in the wake of the Supreme Court decision is the Sutton case. Again this is one that has been reviewed on many indications. I am sure most are familiar with it. It is the case where the Supreme Court said if you have used some kind of mitigating measure, in this case it was eyeglasses, and you have to evaluate the person when determining whether they are a person with a disability whether they are substantially limited in a major life activity. You have to evaluate them based on their use of that mitigating measure. So if they use insulin for diabetes, you evaluate that person after they have taken their insulin. Or if they use medication for their mental illnesses, you evaluate them after they have taken their medication or if they use a prosthetic device or eyeglasses or whatever it might be, you evaluate them in their mitigated state. And there have been a lot of cases where many people with disabilities have lost their case in proving they have a disability because they do use a mitigating measure. Some interesting cases that have come down in the last year, the Capobianco, not sure if I am pronouncing that right, was a case where the person was saying that because they mitigate their disability by having other people drive them this, is somebody who had night blindness, that that should be deemed somebody who doesn''t have a disability and the court rejected that, which I think is a very good decision because they said just by having other people do an activity doesn''t mean that you have mitigated the disability. You still aren''t able to see at night. And so that case was not deemed to be covered by the Sutton case. The Kelly case is one where somebody used oxygen in the workplace and was deemed to have addressed and no longer be substantially limited in the major life activity of breathing, so they were not covered by the first part of the ADA, but they could move forward and the claim of being regarded as having a disability. The Talbot and Fiscus cases that are listed next are more kidney disease cases in finding that despite the fact that the dialysis mitigated the kidney disease somewhat that the dialysis itself, the mitigating measure they were using was substantially limiting in that it impaired their life. It was very time consuming and cumbersome and so even though there was a mitigation going on by using the dialysis, that dialysis itself, and the Supreme Court said this in Sutton as well, that the mitigating measure, if it itself is substantially limiting, can be the basis for a claim of disability. So you can see the other cases that are listed here on page 7, another interesting case involving somebody who uses a cane who had arthritis and had cortizone injections, the court rejected that employer''s claim that the person wasn''t substantially limited because they found they were still limited despite the fact they used these mitigating measuring there. There is a typo I wanted to make sure people saw and corrected. This is my mistake, the little case listed in that same paragraph. The last sentence says this is somebody who used a prosthetic device and the employer was claiming that because they could walk with a prosthetic device, they had mitigated their disability. The court said, no, they were still substantially limited in walking because they walked slower had and had a limp even when they used the prosthetic. The last sentence says plaintiff was not substantially limited in walking. The not needs to be X-ed out or scratched out. The court actually held that the plaintiff was substantially limited in the major life activity of walking. Please correct the outline so you have the right information. The last thing I wanted to point out is there are a lot of cases that have come out with respect to diabetes. The EEOC has a fact sheet. While a large number of people with diabetes have been held to not be covered by ADA because of their use of insulin, there is a listing here of five cases where people have used different strategies to show they are covered by the ADA and using different kinds of major life activities, like the major life activity of eating is the most recent case out of the seventh circuit, the Branham case, the last one, where because of restrictions and balancing of the diet, that itself was enough in order to be covered by the ADA. The other thing I wanted to make sure people remembered when we are talking about the Sutton case is that a lot of times people use a mitigating measure and even after looking at that mitigating measure, they are still substantially limited. So the fact that somebody uses a mitigating measure doesn''t mean you are not covered by the ADA, it just means that has to be taken into account in determining whether you have a disability. And then I just wanted to point out two more Supreme Court cases and these, some of these cases are pretty complicated and if we have time, I can go into more detail. But one is the Olmstead, involving community integration where the court held that you unnecessary institutionalization of people with disabilities is discrimination under the ADA. Case law has been trying to figure out what does the Supreme Court mean by this because they kind of left a lot of things open. One of the things that has been litigated most is whether or not changing how a state delivers its services, institution versus community services, whether or not that is a fundamental alteration because the ADA does have a defense for employers saying if you could show that by making these changes would fundamentally alter the state''s programs, then that is not necessarily required by the ADA. And the fundamental alteration is a very factual, specific inquiry and so all these cases go in a variety of directions because each state delivers its disability services in a different way. But you have got the most, some recent cases that have defined the area a little bit more. The Frederick L. case where the court found that the state really did not have a very concrete plan in place that would really demonstrate that they were moving into a situation where they had what the Supreme Court had called a comprehensive effectively working plan for serving people with disabilities and the state of Pennsylvania didn''t have that and as a result, were not necessarily in compliance with the ADA and the Olmstead decision. So you have got the Frederick L. and Pennsylvania Protection and Advocacy cases first listed. The Sanchez case is a case where they found the other way and found that California actually did have an acceptable plan in place and therefore they were not violating the ADA. The Fisher case and Radaszewski case are a little bit older. You can read those yourself. The one I wanted to make sure we talk about is the Arc of Washington versus Braddock case. It is very recent, but your outline is already outdated because there has been a new decision in that case that came down, I just found it, came down on Thursday, after I had submitted the outline to Robin Jones, and so that is the Arc of Washington versus Braddock on page 10. Originally in that case, the plaintiffs had lost because they found that, that the specific-- they were in compliance with Medicaid and the specifics of Medicaid, which was a basis for the case, was sort of trumped. The broader community integration aspects of the ADA. The plaintiffs in that case filed what is called a petition for rehearing where they asked for the court to reconsider what they have done and get all the judges in the ninth circuit to review the case and what happened was interesting. The court said we are not going to have all the judges review the case. We are going deny that request, but we are going review it ourselves, the three-panel judges will review it. They vacated, sort of erased this decision issued here and listed a new decision. For those of you who like case citations. It is 2005 west law and then the number is 2593050. That was decided October 14, 2005. What the court found is they still found against the plaintiffs in this case, but they said instead that Washington really has an adequate plan, similar like they said in the Sanchez case. They have an adequate plan for deinstitutionalization. They have a concrete plan, have increased the amount of services they provide to people in the community and therefore, they are not in violation of the ADA. So this case is now much more consistent with the Sanchez case that is on page 11. I am sorry, page 9. Then the final Supreme Court case I wanted to mention real briefly and then we will open it up for questions, is the Chevron versus Echazabal case. This is a case you might remember that involved the, how you define direct threat under the ADA. People will recall that one defense an employer can raise is that if a person is a direct threat in the workplace and that threat cannot be lessened by an accommodation, then that is a basis for an adverse action or termination. And the question in the Echazabal case was how do you define direct threat? Is it just threat to others, as the statute said, or is it also threat to self as the EEOC regulations had said. The Supreme Court said that the direct threat encompasses not only threat to others in the workplace, but also threat to self. And you have got on page 11, the one I wanted to mention that is most recent that just came out, is Taylor versus Rice involving somebody with HIV, who had applied for a foreign service position and the state department said we think you are a threat to yourself if you were to get this job because you could be stationed in a less, underdeveloped country that might not have the medications you need and you would be at risk. And therefore, because of this threat to yourself, we are not going to find to you be qualified for the position. That was a district court case, meaning that it can be appealed up to the DC Court of Appeals. My understanding is that appeal is pending. On the other hand, there is a recent case out of Louisiana that went the other way and found that a person was not a threat to herself or others when she wasn''t able to evacuate in an emergency because of back problems. The court had found that she really had no responsibilities with respect to emergency and that the chance of an emergency was very small. If you remember, the direct threat requirement is that you have to show that you are a significant risk of substantial harm to be a direct threat. Here they said that the, there was not a significant risk. It was very unlikely this would happen. So therefore they held she was not a direct threat and the employer should not have terminated her. And then the last little thing I just wanted to mention at the bottom of page 11 where it says "burden of proof" is that there have been cases going back and forth as to whose requirement it is to prove direct threat. And while some cases have said it is the employee''s burden, most have said, like the most recent case, the Branham case, have held that it is the employer''s burden to show that it is a direct threat. That makes sense because direct threat is a defense under the ADA and defense typically have to be proved by the employer. So that is a kind of quick, down and dirty review of recent Supreme Court cases and some of the older cases that have been interpret bid lower courts. Peter, why don''t we open it up for questions and see if people have any specific things they want to ask?
Sure. Kimberly, if you could give people how to give instructions on how to ask questions over the phone.
Yes, if you would like to ask a question at this time, via audio, please press star 1 on your touch tone phone if you are using speaker phone, please press star 1 once you have picked up your hand set. The first question comes from Illinois Department of Human Services.
Hello?
Go ahead with your question.
Yes. I am real interested in the Olmstead cases that have been filed, particularly in terms of the Frederic versus the Washington case. Could you help me differentiate the difference there?
Were you talking about the last case that I talked about, the Arc of Washington versus Braddock case, is that the one you were talking about?
Right.
Yeah.
I am trying to understand the difference related to comprehensive working plan in Frederic versus Washington versus Braddock.
Oh, I see. I think this is, it is not an easy thing to understand because the states really do have a variety of ways in delivering their services, but because the Supreme Court said that a state can meet its obligations under Olmstead if it has this comprehensive effectively working plan, that is now become an issue courts are looking at and states are trying to prove they have been one. With respect to the Frederic L. case, they really did not have a strong history, at least as described by the court, of really putting together very specific benchmarks and timelines, and I think one of the things courts are looking at is this plan something that is really going to be implemented and make a difference, or is this just kind of some general principle of we agree community integration is an important thing but doesn''t have time lines or benchmarks on how many people need to be integrated into the community within a particular time or whether they have designated sufficient funding. One thing that in the Sanchez and then the Braddock case that I think is different is that there was a lot of testimony about the amount of funding that had been allocated or reallocated to the community and that the courts, at least in the ninth circuit, found compelling as far as the state of Washington and the state of California really making significant efforts into moving people into the community and backing up that commitment with actual services and funding and supports and timelines, and the court in Pennsylvania not finding the same thing. Now, the caveat here is that the third circuit is one group and the ninth circuit is another group. And so it might be that this is just a difference in opinions of different judges. So, but at least the way the court cases are laid out it, does appear that California and Washington had made significantly stronger cases for the fact that they had a plan that was actually a working plan and not a plan of ideas and aspirations.
Okay. Thank you. Could we have our next question, Kimberly?
Yes. This comes from the state of Indiana.
Hi, Barry. Can you hear me?
Hi, Rick. I sure can. Go ahead.
Hi, Peter. Good to hear you again. What issues do you see on the horizon in the courts and as best you can with your crystal ball, what do you see the decisions being, especially coming out of the Supreme Court?
Well, you know, I have listened to that crystal ball a few times and I have not always been the best prognosticator. I am not sure that is a great role for me. I think this whole issue of really how Title II is going to be interpreted and I think this next case is going be a real interesting decision, Goodman versus Georgia case involving prisons. So is the Supreme Court going to continue to sort of peck away and look at these on a very narrow basis, or are they going to just decide whether Title II applies to prisons for money damage cases, or are they going to apply a more broad analysis and decide whether or not all of Title II, or other aspects of Title II are viable for bringing a case for money damages in court? So I mean the immunity issue is something that is not just a disability issue. It is something the Supreme Court has been very active in over the last 10-15 years and seems to be continuing in that. I mean I think one of the things that really makes the next few years much more up for grabs is that you do have a change with Justice O''Connor in that she was clearly the swing vote in a lot of cases, including ADA cases and a lot of the employment cases she was often times the deciding vote or wrote the opinion in favor of employers. You will remember the Sutton case and the Williams cases, both in favor of employers. Those were both cases that she wrote the majority opinion in. Whereas on the Lane case, and some other non-Title I cases, she was, even if she didn''t write the opinions, she was in favor of the person with the disability. So we are at the point now where her position is being filled and whether that person is going to be, take a similar tactic or not, I think we just don''t know. We don''t know for sure who that person is going to be. Justice Roberts replaced Justice Rehnquist, who generally was in favor of limiting the ADA''s application and, again with, his testimony it wasn''t clear where he would be going with that, and you can infer some things from his lower court decisions. But I think that is really going be an area we will have to all be watching and holding our breath a bit as disability advocates, at least from my perspective as to where this court will go in the future. As far as other emerging issues, Rick, if you don''t mind, let us wait till I start again because I have identified a variety of ones that I think may be coming up to the court in the future that I will be talking about after this set of questions is over.
OK, great. Thanks.
One question was submitted to me, and that involved the, the question wanted to know about where you have a Supreme Court ruling that settles a difference between two circuits and, for instance, the cruise line cases where the circuits had ruled that the ADA did not apply, what do those litigants, what are their options in court? Do they need to go back to the beginning or are they able to pursue from where their case was finally decided in that particular circuit?
Yeah, that is a good question. I mean it sort of depends on what the Supreme Court does. Lot of times they will issue a sort of general ruling and do what is called a remand. They will send it back to the court and say, look; now apply our analysis to these particular facts. So in the Spector case, they said look, we are saying that Title III applies. That was really the seminal issue that we were looking at. Now we are going send back and say Title III applies, so now let us look at whether or not it will be an undue burden to make the changes the plaintiffs have asked for. And sometimes if a case is decided, or is before the Supreme Court has gone, some courts, what they will do, they will have the case held until the Supreme Court decides the issue, so you have a lot of cases under Title II right now that are being held in the prison context that are waiting to see what the Supreme Court says. You had some court access cases that were held. Once the Supreme Court decides it, then the decision may go forward or the case may go to trial. It sort of depends on what the Supreme Court does. Generally, a lot of times the court will not decide the actual facts of the case, but instead, will interpret the law and then send it back to the lower court to kind of look at the specific facts of that particular case.
Okay. Next one. Kimberly do, we have one more, take one more question before we have Barry resume his presentation?
Yes. The next question is from Disability Network.
Go ahead, Gary, with your question.
It is actually Joe, but speaking on behalf of Gary, actually I wanted to go more into the sovereign immunity issues, why isn''t 504 being used more as all these state entities are recipients of federal funds and we can rely on the authority of the spending clause, which a lot of federalists will support?
Yeah, that is a great question, Joe, and in fact, that is what people are doing. They are suing under both the ADA and under section 504, and what Joe, for those of you that aren''t aware of kind of what he is talking about when he talks about spending clause, is the ADA was decided under, this is a very complicated constitutional issue, but one part of the constitution, the commerce clause, whereas section 504 was enacted under the spending clause, and the reason it is under the spending clause is that sort of as a condition of receiving federal funds, then state entities then are saying that they are open to, or are subject to antidiscrimination provisions under the Rehabilitation Act, section 504. And so a lot of cases people are pleading both. You still have some cases that have, have found that 504 doesn''t necessarily provide money damages, but the important thing is that almost to all of them, that I have seen, have found that even if the ADA is deemed not to be appropriate legislation passed by congress because they went too far, they have not found that under section 504 of the Rehabilitation Act and that that is a viable way to bring a discrimination case if the ADA is not an option because of the sovereign immunity issue. So that is, that is something that people should definitely keep in mind as they are bringing these cases. In fact, think a couple of the cases, if you look on page 3, the Haas case under the prison section, you will see that it said the court did allow the plaintiff''s claim under the Rehabilitation Act to proceed and so that is a strategy that I think a lot of plaintiffs are employing these days, to file under the ADA and section 504.
Excellent. Thank you for the question. We will go ahead and ask individuals to hold their questions and we will resume the presentation. We are about at the midway point and following the next segment. We will open it up for questions again. Go ahead, Barry.
Thanks, Peter. We are now on page 11 of your outline. These are what I have entitled the emerging legal issues under the ADA. This goes to Rick''s crystal ball question. What are some of the hotter issues that haven''t been decided by the Supreme Court that may end up getting there down the road? One interesting development, I think, is the context of medical examination and disability inquiries that are made and people will remember that the ADA is very specific here and that you cannot conduct a medical examination or ask disability-related questions prior to a conditional offer of employment. After you make that conditional offer of employment, you can conduct medical examinations and can ask disability-related questions, but if you then, you know, have some sort of adverse action like not hiring the person, you would have to show that you are not hiring that person based on the fact that a result of an examination or a question, that that decision to not hire them was job-related and consistent with business necessity. Basically the premise is that you want to determine whether somebody is qualified first without factoring in the disability issues. Once you determine they are qualified and given them that conditional offer of employment, then you can delve into those examination inquiries if you want, although I think it is a dangerous practice, but employers are entitled to do that. Then if you adversely decide not to hire them based on what you have found, you have to show a basis that it was related to the job because you have already deemed them qualified by that conditional offer of employment. So there is been a lot of recent litigation on really what these sections mean. Really one of the first things that has been coming up in a variety of cases is who can bring suit? That sounds kind of funny. Typically you would think it is the Americans with Disabilities Act. People with disabilities are the ones who can bring suit under this case. The way it is worded is any applicant or employee subjected to an improper examination or disability-related inquiry has the disability to bring these cases. And it doesn''t say qualified individual with a disability. It says job applicant or employee. You will see on page 12 the listing of cases that most courts have said you don''t have to be a person with a disability to challenge a discriminatory medical examination or question. And that is good news for, really for I think generally for workers, but also for those who have physical or mental impairments that don''t rise to the level of a disability because maybe they use a mitigating measure. And you will see in the middle of page 12 the reason why these courts have decided that people with, who don''t necessarily have a disability can bring these challenges. Part of it is the way the ADA is worded, as I alluded to before, but also it is sort of to effectuate the purpose of the ADA, to end discrimination, which would allow all job applicants to challenge this. The third is it would really be circular to require people to prove they have a disability and provide all this disability-related information in a case where they are challenging that they were unjustifiably asked about whether they had a disability. So that is another reason the courts rely upon. So generally anybody can challenge a disability-related question or examination that violates the ADA whether they have an ADA disability or not. Another, really I think pivotal case was decided recently, was the issue of personality tests and whether they are covered under the ADA as improper medical examinations, and we actually worked on the case that is cited here, the Karraker case. We wrote a friend of the court brief and in doing that brief, we learned that 44% of private employers these days are administering some kind of personality tests as part of their job, either application or promotion process, and so one reason these are such a hot topic is that a lot of these personality tests really are able to identify psychiatric disabilities and as a result, there is the potential that people who are identified as having a psychiatric disability through these personality tests are screened out, which is exactly what the ADA was trying to prevent. So the Karraker case listed here involved a particular personality test called the Minnesota Multiphasic Personality Inventory, also known as the MMPI. You may have heard about this in your psych 101 class in college. This is a test that does a variety of things, but one of the things it can identify is different psychiatric conditions, including depression, paranoia, mania, schizoid tendencies. What was being challenged here was the use of this MMPI test as a basis in the decision whether somebody should be promoted or not and the way Rent-a-Center, the defendant in the case, had held it, was if you scored a certain score on the MMPI, it was 12 derivations, you were automatically excluded from promotion opportunities. And so it wasn''t a situation where it identified an issue and then the employer would inquire as to whether it affected your job performance. It was an automatic exclusion, really a screening out of people with certain psychiatric disabilities based on this test. And so the employer had argued that it wasn''t being used to screen out people, it was really just good for vocational purposes to figure out if they really had the right personality for the job. The seventh circuit court of appeals found that, no, it was not just used for vocational purposes. It really was used to diagnose mental impairments and even though this particular test was not administered or interpreted by a mental health professional, which is what some courts have said is an important factor, the court said that is, that doesn''t mean that it is not a medical test, even if a non-medical person interprets or administers the test it can still be an illegal medical test when it does identify the psychiatric disabilities. And so I think this is a case where a lot of employers should really take a look at what their current process for evaluating employees and promoting employees or job applicants is and whether they are using any of these kinds of tests. And if so, whether that is a test they want to continue to use, especially if they are using the MMPI. That particular test was identified by the seventh circuit as one that violates the ADA and how it was used by this particular employer. Another issue in examinations and testing is the fact that you can get accommodations in these types of things. Sometimes employers will say this is the test and you have to do it and it is no matter what. And the VanBuskirk case out of Indiana is a good example that if the test really isn''t related to the job or part of the essential function of the job, like typing in that case, and it had been waived in other situations, it is not unreasonable to waive that for someone who would not be able to pass that test. There is information here also about physical ability testing that sometimes that is okay. Other times it is not. Depends on how it is used and, again, whether it is related to the job or not. You got the Fuzzy case where the pipe fitter position was required to meet 100 pound lifting test. That was related to the job because you got to lift, I guess 100 pound pipes. But then in the Jeffrey case, you had a chaplain who is required to undergo a physical abilities test that he was not able to pass because of his pulmonary disease and the court found that that was not related to an essential function of the test and was not something that could be deemed a mandatory requirement. An issue sort of bubbling out there following up on Rick''s question, we haven''t really seen any litigation on yet, but is one that I have heard people thinking is an issue is the top of page 14, which is questions about people''s credit ratings and credit history. And there has been a lot of litigation in this context with respect to racial discrimination and those tests having an adverse impact on racial minorities. And people believe that these tests would also have discriminatory impact on, on people with disabilities as well because of maybe a lower credit rating based on situations people with disabilities have faced in their past. So that is one to watch for. We really don''t have any cases to look at, but something people may think may be coming down the pike. Moving on to another area, reasonable accommodation, that is always a lot of different issues coming up there. We have got a listing of cases here on the interactive process. While people with disabilities have not fared well in the courts in a variety of areas with respect to the interactive process, which is saying that employers have to interact with employees when they ask for an accommodation, courts have been pretty stringent against employers and in saying that if you fail to engage in the interactive process when somebody asks for an accommodation that may be a basis for an ADA violation. So you have got a listing of some of the most recent cases on that, the Sears case out of the seventh circuit being the most recent one. Then you have got an interesting issue that there is a major split in the circuits. Again, when there is a split in the lower courts, that is when the Supreme Court seems to take an interest. This is the issue of whether or not somebody who is regarded as having a disability is entitled to a reasonable accommodation. These cases are on page 14, continuing onto page 15. This is an interesting issue because when the ADA talks about providing a reasonable accommodation it, doesn''t say reasonable accommodations are only provided to people who have an actual disability. It just says a person with a disability. As we all know, disability is defined not only as people with an actual disability, but also people regarded as having a disability or have a record of a disability. And so the question is whether or not somebody who maybe can''t prove they have an actual disability, but is regarded as having a disability, whether they would be entitled to an accommodation or not. And you will see that there is four circuit courts of appeals listed at the bottom of page 14 that have said yes. Those folks should be entitled to an accommodation since the ADA doesn''t delineate that people have to have an actual disability to be entitled to an accommodation. Then you have the cases going the other way, four other circuit courts that have felt that accommodations should not be provided in those contexts because it really is in their view a windfall for employees that really are getting accommodation based on employers'' erroneous view that the person has a disability. Then you have the seventh circuit, which is declined to decide the case, decide the issue. So, again, we have got courts all over the place on this issue and when the courts are in disagreement and the lower courts, sometimes that is when the Supreme Court decides to make a decision so there is consistency across the country on some issues. The next issue that is listed here for accommodations is working at home as a reasonable accommodation. People may know that the Equal Employment Opportunity Commission did issue a fact sheet on work at home and provided information to employers that they are not necessarily required to have a teleworking policy under the ADA, but if they do, then they need to allow people with disabilities to participate in it and make modifications to that policy where it would be a reasonable accommodation and that if they don''t have a teleworking policy, but that is an accommodation that the person with a disability is requesting, that needs to be considered as any other accommodation would be considered. Then you have got a listing of the court cases and in general, most courts have been pretty hostile to working at home as an accommodation. You have got the sixth circuit and seventh circuit and the tenth circuit that have found that they aren''t entitled to this, at least under the facts of these particular cases. The ninth circuit found that working at home was a reasonable accommodation and then the eighth circuit has cases that go both ways. These are very fact specific. I think if you have individuals who interaction with coworkers or interaction with customers is really important, in-person type of interaction is really an essential function of the job, then working at home, teleworking is going to be deemed maybe not a reasonable accommodation, but there are certainly a lot of jobs where that is not necessarily an essential function and people can certainly work at home a lot of people are doing it these days, and so there may be situations where that may be deemed a reasonable accommodation. Lot of times we don''t see cases it is because they are working out. I think there are a lot of people who are working these things out and haven''t litigated under the ADA. At least a lot of the cases that have come under litigation, a lot of the plaintiffs have lost. Just a reminder their reasonable accommodations also apply to temporary workers. Again, not a lot of cases on this, at least reported cases, but there was a case here in Illinois where a temporary worker was not accommodated and was terminated and the case settled with the person who had just worked that one day getting $150,000. So a lot of times employers think that it really is the temporary agency who has to accommodate the person with the disability and at least based on what the EEOC says, it is a joint responsibility between the temporary employment agency as well as the hiring employer to accommodate people with disabilities. That wouldn''t be an undue hardship. The next section of cases is an area where the EEOC is, I think, being very aggressive and finding that employers who is are using what are called 100 percent healed or people only being able to return if they are, quote unquote, whole, w h o l e, I think it is an offensive term, but that is what the policies say. It is basically where you can''t come back if you have had maybe some workplace injury or illness unless you can prove that you are 100 percent healed. The reason why employers are losing these cases is because these policies are in direct conflict with the ADA''s reasonable accommodation requirements, which says that people who aren''t necessarily able to do everything in a job or have some impairments can be accommodated in order to do the job and that that is a responsibility employers have under the ADA. So some courts have gone as far as saying that it an employer has one of these 100% healed violation, it is a per se violation of the ADA and they automatically lose. And that rarely happens in these ADA cases, so I think these are ones where employers don''t really want to use that language in their policies because the courts have not been receptive to them. The next two sections are related, Disability harassment and constructive discharge. And people are probably familiar with these terms in the context of situations outside of the employment arena. Harassment cases, I think, are more commonly thought of in the sexual harassment because that is where a lot of the cases have been and a lot of the publicity, but generally courts are now recognizing that disability harassment is actionable under the ADA. It is the same analysis, really, as you would do under sex harassment case. You will see the different factors that are listed on page 16. You have to show you are qualified individual with a disability, that you have been subjected to unwelcome harassment that, the harassment was based on disability, that harassment was sufficiently severe or pervasive to alter your employment and that the employer knew or should have known about the harassment but didn''t do anything to address it. Really if you look at this analysis, the fourth factor, whether the harassment was sufficiently severe or pervasive, is really the main issue that is being litigated in the courts. So most courts, when they are confronted with this will say, yes, disability harassment is actionable under the ADA, but the case turns on whether or not the actual conduct, the actual harassment was severe or pervasive. These are very fact specific. Sometimes you look at the facts and think, you know, that sounds pretty severe, pervasive to me, but different courts go different ways in their interpretation of this. Generally if a plaintiff can show that there was some emotional or physical harm that they experienced because of the harassment, that makes the case stronger and claiming that it was severe or pervasive. You have got a listing of the cases, the first two, the Flowers and Fox cases were some of the earlier cases where it was deemed that you could not only bring an ADA hostile work environment claim under the ADA, but also that the court found in favor that the action of the employer was severe and pervasive. Then you have got a listing of cases here, the Shaver, Lanman, Coulson, and Hamilton cases, where the courts found you could bring a disability harassment case, but in this particular case, the discrimination was not severe or pervasive enough. The Shaver case is one that doesn''t make sense to me as a human being, in that the person sounded like he was certainly subjected to pervasive and severe harassment. He was somebody who had a metal plate in his head as a result of epilepsy and he was just really ridiculed horrendously in the workplace, called plate head and other horrible. And while the courts found that was not pleasant talk in a workplace, they didn''t find that it was sufficient enough to be severe or pervasive and that people get called all kinds of things in the workplace and it really is a high standard in order to be covered by the ADA for this. The most recent, the most recent case filing in favor of a person with a disability is the Rohan case out of Maryland that found that the person was subjected to harassment under the ADA when they were required to divulge a lot intimate details about their disabilities to over 30 coworkers. The constructive discharge section, as I said, it is similar, because it is also got kind of a similar analysis as far as proving it. This is one reason I listed this here is because the Supreme Court in 2004 decided a case on constructive discharge in a sexual harassment case and for people who aren''t familiar with the case constructive discharge, that means that people leave the workplace and basically say they felt like they were compelled to resign because the situation was such a hostile working environment and it was really intolerable for them to remain there and they had to leave. They felt forced to leave. They were constructively discharged and the standard the court has adopted for constructive discharge is that the abusive working environment became so intolerable that the resignation was a fitting response. So intolerable is sort of the key word here and you will see the Rooney case being one where they found that it was not intolerable and then the Smith case where they found that it was intolerable for them to stay there because of the poor working conditions and, again this is something where they found that if the person stayed, it was going to actually lead to a deterioration of their health. Again, if a plaintiff can show some sort of physical harm or threat or emotional harm or threat, they are going to have a stronger case in both the constructive discharge, as well as the disability harassment cases.
The next section is another emerging area, retaliation, and people may be familiar with the first three titles of the ADA, but there are actually five titles of the ADA. Under Title V of the ADA, it says that if you are retaliated for exercising your rights under the ADA, that in and of itself can be a basis for an ADA discrimination claim. Say you were not provided an accommodation in the workplace and you filed with the EEOC and then after filing with the EEOC, the employer retaliated against you and fired you, you would have not only a disparity treatment claim in that you weren''t given equal treatment, but you would also have a retaliation claim for exercising your federal civil rights. And a couple of the issues that are emerging is one, who is can bring a retaliation claim and that is similar as to who can challenge a discriminatory inquiry. Does it have to be a person with a disability or not? And the case out of the third circuit, the Shellenberger case, said that, no, you don''t have to have an ADA disability because it does not require to you be a qualified individual with a disability. It just requires that you were retaliated against for exercising your civil rights and that is enough. So, again this is good for people who may have a physical or mental impairment that doesn''t rise to the level of disability. And that way if they can''t prove they have a disability to the underlying claim that may be filed with the EEOC, if they are retaliated for exercising their rights under the ADA, they would still have that claim surviving even if they can''t prove they have a disability for the initial thing they filed the with the EEOC for. Another question arising is whether or not you can get damages under retaliation claims, and this is a complicated analysis in that it is saying that because the retaliation component of the ADA is under Title V instead of under Title I, that you are not entitled to damages because the damages component arises out of Title I. And the courts are really split on this. You will see the Kramer and the Johnson case finding that you can''t get money damages and then the Salitros and Rhoads case where plaintiffs were awarded damages. The interesting thing about if you are not able to get damages, it also, courts have said you are also not entitled to a jury trial because typically jury trials are only allowed for people, in cases where money damages are possibly awarded. So not only are you losing the ability to get money damages, you are also potentially losing the ability to have your case heard before a jury, which is important to some people in certain jurisdictions. Then there is more information here. I am going move on because we have got a few more pages I wanted to cover before this is over. But information about informal complaints and a case out of, involving all states that I think is interesting. Another issue that I think is emerging that we are starting to see some cases on that really in the first ten years of the ADA, we didn''t see much at all, is association discrimination. People may remember there is a component of the ADA that says even if you aren''t a person with a disability yourself, but if you are discriminated against because you associate with somebody with a disability, have you some sort of relationship, whether it be because you are a family member or a caregiver of a person with a disability. If you are treated adversely because of that relationship, because of that association, you are also entitled to protection under the ADA and you have two cases that go in opposite directions. The Larimer case out of the seventh circuit where the employee was discharged because the employer wasn''t happy that he been out caring for his twin daughters, and he claimed that he was terminated because of his association with his daughters and the employer not liking the fact he been out of work so much. The seventh circuit adopted sort of a three part test, which for the life of me I can''t figure out where they came up with because it is not based on any statutory or regulatory provisions that I have seen before. But basically they say you can only be covered for association discrimination if you can show either that the association is costly to the employer, maybe because of healthcare coverage is increasing, because they have to insure the family member and they are discriminated against because of the increasing healthcare costs. A second one, because the employer fears that because you associate with the person you are going to maybe infect other people at work. That would have to be a disability that is infectious. Then the third one, that your association, as a result of your association with somebody with a disability you are unduly distracted at work because you are so kerned about the person with the disability, the family member, whatever it might be. So if you are in seventh circuit, which is Indiana, Illinois, Wisconsin, at least the way the court decisions are now, you would need to be within one of these three provisions to be covered by association discrimination. But then you have a case that came out more recently, the Strate case out of the eighth circuit, which said that you don''t have to fit into one of those three categories to be covered for association discrimination. So it really depends on where you live right now as to whether or not you would have to fit within this three-part test. Evacuation of people with disabilities, this is obviously a pretty relevant topic these days in the wake of 9/11 and in the wake of some of the natural disasters that people in our country have been having to deal with, and there isn''t a lot of case law on this. The main cases is a Title III case, the Savage case listed here involving somebody who used a wheelchair while at Marshall''s and had to be evacuated. Marshall''s basically assisted the person out of the store but when they were assisted out of the store, the elevators were turned off and there were only stairs, so they had no way to get away from the mall in this evacuation. And the question is whether or not the store itself, Marshall''s, had a responsibility beyond getting the person out of their store, if they had to provide an accessible exit out of the mall itself. And the court found that there was a basis for making a claim that Marshall''s had a responsibility and it wasn''t just the mall''s responsibility to provide an accessible exit, and after this initial ruling in the case, the case wasn''t over, but after this initial ruling by the court denying the store''s motion to dismiss, the case settled. And you will see here the point dots here of all the provisions of the settlement where Marshall''s, and they have got over 700 stores, is going to really do a variety of changes in their stores to address the evacuation needs of customers with disabilities. I think just as a matter of safety and good public policy, this is a terrific result and will result in a lot of positive changes, I think, for people with disabilities and hopefully other public accommodations will take its cue from this particular settlement and put in these kind of changes in policies and provisions if they haven''t done so already. And it will be interesting to see if some of these issues are then applied to the context of Title I in employment when you have employees with disabilities and what a responsibility of an employer would be to assist the person with a disability in getting out of not only their particular office, but out of the whole building if there is a difference in accessibility. But it seems to me that there would be comparable argument under Title I that was made under Title III in the Savage case. Two more issues and then we will just open it up for questions. Movie theater accessibility, we have actually talked about this before and there haven''t been a lot of new cases, but this is an issue a lot of people have raised and you have got physical accessibility in the context of stadium seating and there have been cases going back and forth, I think when I talked last time, one of these cases was being petitioned to the Supreme Court and they actually didn''t take it, but the question here is really what did the Department of Justice regulations comparable lines of sight mean, because that is a provision under the ADA, which says that you have to provide comparable lines of sight and whether or not unobstructed view versus actual scattered seating is required and you see the cases here. You have got cases on communication access. These are primarily people who are deaf and hard of hearing going to movie theaters. You got information about companion seating as well. Then on page 23, I wanted to mention that one of the kind of hot issues that we have seen in a couple of cases in the last year is really reasonable modifications in Title II transportation cases. You will remember that Title II is divided up into part A and part B: Part A covering generally state and local governments, Part B covering transportation entities. The question that comes up is what about somebody needing a modification from a provision, you know say the entity, the transportation entity complies with part B and provides maybe the requisite number of accessible seating or something like that on Amtrak. Are they still under a requirement to provide a reasonable modification under part A of Title II or not. So far, the courts are saying, no, they are not under the ADA required and that part B of Title II is very specific and if transportation entity meets those requirements, they are complying with the ADA. Interestingly, the Department of Transportation just recently issued some guidance saying that there are requirements sometimes for transportation agencies, particularly paratransit agencies to provide modifications to some of their policies. Even though the courts aren''t necessarily saying this is a requirement, now the Department of Transportation is looking into this, saying that transportation entities do have to make some changes. So with all that, I think, Peter, let us try to get some questions in before we run out of time.
Absolutely. Kimberly, why don''t you go ahead really quick and give instructions again and we will go to our first question again.
Once again, if you would like to ask a question, please press star one on your touch tone phone. If you are in queue and wish to no longer ask a question, please press star nine. Again, to ask a question, please press star one. Rehabilitation Services Commission.
Go ahead with your question.
Well, I had a question for you. Can you hear me okay?
Yes, go ahead.
Recently there was a bus fire in Texas that resulted in the deaths of many passengers. The fire was accelerated due to the fact that many of the bus passengers were elderly persons using oxygen tanks while being evacuated from the hurricane. Many transportation providers have contacted me here in Ohio and they are very concerned about transporting persons with disabilities who use oxygen on board the vehicles. Has there been any legal decisions or precedents concerning whether transportation providers must allow oxygen tanks on vehicles under the ADA?
You know, I haven''t seen that there. There may be cases out there, but I haven''t seen those cases, so I am not sure that there are. I know that there were some cases with regard to airlines on this issue and frankly, I don''t remember the way those turned out. But as we all know, airlines are covered by the Air Carrier Access Act. I haven''t seen anything with respect to buses and other types of transportation and oxygen. I can take a look at that and if there are any cases we find, I can pass that along and get that information to folks.
I would encourage you to contact the ADA center as well. Could we have our next question, please, Kimberly?
Thank you very much. On Title II, case law we have so far on local transportation entities failing to comply with transportation regulations, for example drivers making announcements.
Did you get the end of that?
I didn''t get the end of the question.
Could you repeat the end of the question, please?
Sure. Failure to comply with DOT regulations such as the requirement the bus drivers make major bus stop announcements.
Yeah, what is the question, whether or not those are covered by the ADA? I mean because maybe I wasn''t clear before
What case law is there so far on that?
There isn''t a lot of case law on those provisions per se, although I think one reason is because it is really clear that those, that those requirements are, like announcing bus stops, it is really clear that is a requirement under the ADA. I mean we had that as a case issue we litigated in a case we brought against the Chicago Transit Authority and that case ended up getting settled and they have made changes so that they have automated announcements on buses and trains in Chicago. But I haven''t seen any cases that have specifically said, you know, interpreting that as a valid component of the ADA per se.
Thank you.
Sure.
Our next question, please, Kimberly?
Yes, Inclusion Network.
Hi, this is Jay from Ohio rather than Sue. Couple of questions, seems like the majority of your cases and comments were related to work employment. I would like to know under the ADA and 504, if you could substitute some of those for educational colleges, schools, universities, particularly for the disabled staff members, student, professor, whatever. For example, hostile work environment, you could, or employment, that would be for hostile work environment for the student. Reasonable accommodations for education rather than related to job relation, retaliation, for example, that a disabled student complains about non-disabled students or staffers blocking and utilizing handicap parking spaces. The disabled student is suspended and so forth. So can you talk a little bit about that?
Sure. Those are great questions and, you know this, is all conjecture at this point and not real legal advice. I think two of the things you mentioned, the retaliation and the reasonable accommodation components, really could be applied in the Title II context in education. I mean Title II talks about reasonable modifications. It is not the same language as reasonable accommodations, but it is really the same concept and there have been a lot of cases talking about modifications in educational situations. So I think that is certainly something that is clear in the law that education entities have to provide those modifications, like providing auxiliary aids for people with disabilities as an example of a modification. Retaliations, I haven''t seen any retaliations, but I think again because it is under Title V, it is arguable if somebody is exercising their civil rights under the ADA Title II they would have a basis for retaliation claim. Then the harassment, I think that is the one that is probably the trickiest in that I really haven''t seen those harassment kind of claims being brought in the context outside of employment, but, again, it may be, if you can just show that it would be, really change the condition of the service that the person is receiving, just like you have to show that it is a change in condition of the employment situation, you might have a claim for that. But I haven''t seen people make that argument and so it is unclear whether that would be successful or not.
All right. Thank you. Next question, please, Kimberly?
Birmingham Independent Living Center.
Go ahead with your question.
Disability Network.
I wanted to go back to the retaliation issue again, and in asking for reasonable accommodations or reporting behavior, I believe that there are anti-retaliation provisions written right into both the Title II and the Title III regulations, and I do believe that in one case on a special ed instructor reporting inaccessible features of a public school district, the Settlegood versus Portland case that, retaliation was a part of that court ruling. In other words, she got fired in part for reporting substantial Title II violations.
Great. Well, thanks for that information, Joe. I actually wasn''t familiar with that case and have really only focused on retaliation as respects Title V. You may be correct that, there are provisions within the Title II and Title III regs that also talk about retaliation. Like I said before to Jay, it just makes sense intuitively that you should be able to do retaliation claims for any violation of the ADA or any exercising of your rights under the ADA. So I am glad to know that information and it doesn''t surprise me based on sort of the basis for retaliation, that it is not about retaliation and work. It is about retaliation for exercising your physical, your civil rights. So thanks for that information.
Thank you for the question. I have got a question that was submitted to me, Barry. Involving the cases where employers in the circuits where employers, where the circuits are reading that employers are required to provide reasonable accommodations, can you drop that line? Thanks, Kimberly, where the employers, where the circuits are stating that employers are required to provide reasonable accommodation to individuals that may not meet the definition of disability or can''t prove that they meet the definition of disability. In those cases, or in those circuits, are they stating that because the employer is regarding the individual as having a disability and had already previously been providing an accommodation, or is it simply the fact that the law is not explicit in that area?
Well, I think it can arise in both those contexts where they are regarding it and they are, maybe they made some sort of statements or something that indicate they believe the person has a disability and they are not providing the accommodation for whatever reason. It can also arise in the context of person who has a record of a disability. So, say, somebody has a record of cancer and is now cancer-free, but maybe they are asking for an accommodation to visit their oncologist for checkups or something and alter their schedule or something like that. That could be a basis for an accommodation for somebody who doesn''t have an actual disability but has a record. So it could come up for regarded as and record where the employer has done something to indicate that they believe a person has a disability or there is a basis for them having a disability in the past. Most of that, that is really when the courts have ruled in favor of plaintiffs, because there is this sort of evidence of employer conduct.
Okay. Another question that was submitted just asking about trends or cases regarding the definition of disability under the ADA.
Okay.
Just wanted to know early on there, were quite a few cases, but are there as many recently regarding the definition as there were a few years ago?
There is still quite a bit. I mean they really are most commonly in two instances. One is the mitigating measures. The Sutton cases we talked about and then there was another Supreme Court case I didn''t mention today, the Williams case involving the person with carpal tunnel who was claiming they were substantially limited in performing manual tasks at work and the court said you have to look beyond the work context and look at see whether they, the impairment effects their daily lives, and so we are seeing a lot of cases involving, well, does this effect your daily life and not just your work and having to prove sort of daily functions and not just work functions to be covered by the ADA. That is where we are seeing a lot of litigation as well.
In those areas, okay. Kimberly, do we have another question out there before we hit the bottom of the hour?
Yes. We have one final question in queue. Disability Empowerment Center.
Go ahead with your question.
Couple of points. I am involved with the litigation right now against our city because of curb cuts, violations, they are resurfacing streets without putting curb cuts in. They also don''t have a transition plan. How vital is it, do we have a strong point in the fact that they don''t have a transition plan and secondly, my question is with voting, do you have any cases dealing with accessible voting? Our group is very interested in that. Thank you.
Yeah, with respect to the curb cuts, I mean that has been something that has been litigated and in a variety of contexts, the most common, most famous cases, a case called Barden, out of the ninth circuit where the question was not, was less about the curb cuts per se and more about the accessibility of the sidewalks between the curb cuts and whether those were covered or not. I have not necessarily seen cases where people have based liability under the ADA on transition plans in fact, I am remembering something the Department of Justice is not necessarily recognizing that as a cause of action in and of itself, but this is kind of just going on kind of a vague memory at this point, so I am not certain on that, so I would just suggest that you do a little bit more legal research and consult with attorney if you are not an attorney yourself. I don''t want to lead you astray on that. But certainly the ADA is really clear as far as the requirement to provide curb cuts and there has been some litigation that has been filed in the past and that is currently pending around the country regarding that being an issue of liability for state and local governments and then with respect to voting, voting is certainly covered under Title II of the ADA and there has been some litigation with respect to voting access for people with physical disabilities. There is also been some issues with respect to voting access for people with visual disabilities and having a verifiable paper trail that has been brought in the wake of the Help America Vote Act. And a lot of those cases have been coming down recently and initially at least some of the primary cases people with disabilities have not been as successful as others had hoped, but I think we are going be seeing more of that as the requirements of the Help America Vote Act kick in January 1 of 2006 where each election, polling place has to have an accessible voting machine and really what litigation is going to arise out of that under Title II.
All right. Well, thank you, thank you, all very much. It has reached the bottom of the hour and we have-- if you have additional questions, if you weren''t able to get your question answered, I would encourage you to contact your regional ADA and IT center by calling 800-949-4232. As always, there will be a written transcript as well as an audio archive of today''s session available on the ADA-audio.org website in the next seven to ten days. So you can look for the transcripts to be posted there. As always, I wanted to thank Barry Taylor for his time and great information and knowledge on these court cases. We appreciate the time that he gives us. I would encourage all of you to check into the two part accessible information technology audio conference sessions we have coming up November 15th. We have a session dealing with the pros and cons of web accessibility tools with Terry Thompson with AccessIT and then the second part is December 13th in looking at web, accessible web-based communication tools with Steve Jacobs from Ideal Group. So please visit the ADA-audio.org site to get information about those sessions and don''t forget to contact your regional ADA and it centers at 800-949-4232 if you have questions regarding the Americans with Disabilities Act. Thank you all for participating in the first session of the 2005-2006 season and we look forward to seeing you in the future and, yes, there is a baseball team from Chicago in the World Series and Barry and I can attest to the fact that the city of Chicago is still standing. So thank you all and have a great afternoon.
This concludes today''s conference. You may now disconnect.