Good day, ladies and gentlemen, and welcome to the Great Lakes ADA Center, ADA Legal Update: Current Litigation Trends Under The ADA. 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 operator assistance during the conference, please press star, then zero on your touch-tone telephone. As a reminder this conference call is being recorded. I would now like to introduce your host for todays presentation, Miss Robin Jones. Miss Jones, you may begin now.
Great. Thank you very much, and good afternoon or good morning to everyone, based on where you might be in the country. And I''m happy to have everyone joining us today as part of the 2007-2008 ADA audio conference series. This month is our first of a 12 part series for this fiscal year for us. And this program is brought to you by the network of regional ADA centers across the country. This is a collaborative program where were bringing you monthly opportunities to receive information and be updated about various aspects of the law. We''re excited about our agenda for this next year and we strongly encourage you to visit the www.ada-audio.org, which is the website for this program and gives you a full listing of the series of programs for the next 11 months past this. We''re having people join us today via telephone, streaming audio on the internet as well as real time captioning. A written transcript of this program will be edited and posted to the www.ada-audio.org website within ten business days of the close of this conference, as well as a digital recording of the session. We encourage you to go back and refer to the archives that are available on the website. There''s a wealth of information there and those are frequently visited by many people who are looking for information on these various topics. I''m excited today that we have Barry Taylor joining us once again. This is a very popular session that we get a lot of requests for and a lot of information from. Barry joined us for the last couple of years for an ADA legal update. And I''m happy that he could join us again and kick off our year today. Barry has been with an organization known as Equip for Equality since 1996. He''s Legal Advocacy Director there. Equip for Equality is the Illinois protection and advocacy system, or the P&A as its otherwise known. He supervises legal services, self-advocacy and the training programs and hes also overseen many individual and systemic disability discrimination claims including several federal ADA suits against the National Board of Examiners, Chicago Police Department, CTA, and hes currently counsel in a class action on behalf of people with a developmental disability living in institutions looking at implementation of the intents of Olmstead in the state of Illinois. He oversees the self-advocacy training projects and has trained thousands of people through that program. He also oversees the guardianship, transportation, voting, employment and special education programs. He gives numerous presentations on the ADA across the country to people with disabilities, employers, service providers, and advocacy organizations. Prior to becoming the Legal Advocacy Director, he was a senior attorney for Equip for Equality where his primary focus was on systemic litigation and education under the ADA. He''s been on many different groups: Chairperson of the Legal Committee of the National Association of Protection Advocacy Committees, Chairperson of the Disability Rights Consortium. Hes been chairman of the Chicago Bar Association Mental Health and Disability Law committee. He also is an Adjunct Professor in the John Marshall Law School and in 2001 he was named in Chicago Lawyer magazine as one of the 40 Illinois attorneys under the age of 40 to watch. So he is known and has a lot of reputation in those regards. Prior to coming to Equip for Equality, his experience was with the AIDS project. He was an attorney in West Regional Office of Lambda Legal Defense and Education Fund, working to advance civil rights of people living with HIV and AIDS. He included successful challenges to discrimination for Chicago Public Schools on teacher applications, and he also did extensive educational work regarding HIV/AIDS and the ADA. He did have a life before civil rights, and that includes working as an associate for the Chicago law firm of Peterson and Ross, and he graduated from the University of Illinois College of Law, where he also got his undergraduate degree. So, without further ado, and I think that his bio tells a lot about his background and experience, and I think you will enjoy hearing from him today and will recognize the knowledge and breadth that he brings to this particular topic. So, Barry, I will turn it over to you at this time.
Thanks so much, Robin. It''s a pleasure to be back speaking to all of you again this year, and hopefully the information will be very useful in what you are doing. As Robin mentioned, Equip for Equality is a protection & advocacy agency for the State of Illinois. There''s an agency like ours in every state, and if youre trying to find the agency in your state and dont know about it, you can contact our national association, the National Disability Rights Network, at 202-408-9514. Thats the voice number: the TTY number is 202-408-9521. And they also have a website: ndrn.org. You can look for the Protection & Advocacy organization in your state if youre a person with a disability needing assistance. Hopefully you were able to access the outline that I put together, and what Im going to be doing is dividing up the presentation into three segments. Well look at pages 1 through 12which are sections A and B of the outlinefirst, then take a quick break, and see if there are questions, then we''ll go to pages 13 through 25, sections C through G. Take another quick break, see if there are any questions, and then finally look at pages 26 through 39, sections H through R, which mostly focus on Titles II and III. The first two sections of the outline are focusing more on Title I issues, where most of the litigation has been. And of course this outline is not comprehensive; it doesnt cover all of the ADA litigation that has happened. Ive tried to pick out topics that seemed to be generating a lot of interest over the past year and highlighting some of those different cases. Obviously its not comprehensive to all the issues, and within the issues Ive picked select cases, because if we talked about every single ADA case that has come down this past year, that would be much longer than it currently is. A lot of times when Ive spoken, weve spent some time talking about what the United States Supreme Court has said about the ADA, and the last couple of years the Supreme Court has not taken an ADA case with respect to employment. They have looked at some sovereign immunity issues and some other things, but the employment issues, which is where most of the ADA litigation has been coming, have not been before the Supreme Court. However, even though there havent been recent ADA cases on that issue before the Supreme Court, there are activities that are going on in the congressional branch of our government to address these past Supreme Court decisions that many people feel have unnecessarily narrowed the scope and the ability for people to enforce their rights under the ADA. Many of you are probably away of the ADA Restoration Act, which is a law that is intended to restore what people believe were the original intentions of Congress with respect to the ADA. It was reintroduced again this year in July, on the anniversary of the ADA. And really what it''s trying to do is counteract primarily a couple of major decisions that the Supreme Court decided before, several years ago, one being the Sutton case, which, again, I know many of you are already aware of but, just real quickly, it''s a case where the Supreme Court said when deciding whether somebody is covered by the ADA, whether they have a substantial limitation in a major life activity, you have to look at them with any mitigating measure they may use. So, if a person takes medication or they use some sort of an assistive device to address the symptoms of their disability, you take that mitigating measure and how it affects that person''s disability or impairment into account when determining whether they''re covered by the ADA. The Supreme Court''s decision really was a major shift in ADA litigation, because most of the lower courts, prior to the Supreme Court decision, had said you don''t look at that mitigating measure when deciding whether that person is covered by the ADA; you look at that once youre determining whether theyre qualified to do the job. But the Supreme Court did not agree with that and said that employers, and courts in interpreting cases, should look at whether or not the mitigating measure impact takes away from whether the person is substantially limited in a major life activity. As a result, we''ve had a lot of cases that typically we think would have gone forward, have not gone forward because the person is found not to have a disability once you take into account the mitigating measure. The other case that Congress is taking into account with the ADA Restoration Act is the case Toyota versus Williams. The facts of that are less important, but one of the things that was in that case, it said that the definition of disability should be narrowly construed. And this was really counter to a lot of precedent about other civil rights laws, which say that civil rights should be viewed broadly because of their remedial purpose, to try to address past discrimination. The Supreme Court went a very different way under the Williams case. They also introduced this concept that you had to look at whether or not the impairment was substantially limiting in peoples daily lives, activities of daily lives. So, even though somebody might have been able to show that they were substantially limited in certain activities at work, if they were not able to show they were also substantially limited in things at home like dressing themselves or brushing their teeth that would undercut their disability claim. So really what we''re finding after the Supreme Court cases, that many people who use mitigating measures and other types of disabilities are not able to move forward with their case because they''re found not to have a disability. So people with diabetes and epilepsy, mental illness, people who use hearing aids or crutches, all of a sudden those mitigating measures they may use to address their disability are basically being used against them and preventing them from moving forward with a lot of these ADA cases. So, really, what the ADA Restoration Act is trying to do is counteract the Supreme Court cases and they''ve done it in a few ways through the legislation. First, they have changed the ADA definition. As Ive mentioned, a lot of what is going in these cases is the person is having a difficult time showing they''re substantially limited in a major life activity. And so what the ADA Restoration Act is doing is seeking to take away that component of the ADAs definition and leave it with the person having to prove they have a physical or mental impairment. A person, if the ADA Restoration Act passes, would no longer have to show that they''re substantially limited in any major life activity. And therefore whether they''re taking mitigating measures or not would really become irrelevant. And in fact the ADA Restoration Act also specifically says that you do not look at mitigating measures when determining whether somebody has an impairment, a physical or mental impairment. That''s just not relevant at that stage of the case. The ADA Restoration Act makes it clear that you still have to be qualified, but thats after you are determined to have a disability. So first you show that you do have the physical or mental impairment, and then it''s later, after you are past that hurdle that you show that you are qualified to do the job, with or without a reasonable accommodation. The Act also seeks to strike some of the language that was in the ADA that the courts were relying upon. There currently is language that talks about that the ADA was passed, there were 43 million people with disabilities, and that people with disabilities are a discrete and insular minority. The Supreme Court used those phrases from Congress to say that shows that Congress intended the ADA to be interpreted very narrowly. And so by taking out that language it undercuts and prevents the Supreme Court from using that type of language to narrowly interpret the definition of disability. They also state specifically in the ADA Restoration Act that when courts construe the ADA they should construe it broadly, to advance the remedial purposes. So that undercuts Justice O''Connor''s statement that the ADAs definition of disability should be construed very narrowly. And then it also specifically states that the regulations and guidances of the federal agencies that are designated to enforce the ADA and put together regulations and that sort of thingthe Department of Justice, the Department of Transportation, the Equal Employment Opportunity Commission, that all of the guidances and regulations that they issue are entitled to deference in judicial proceedings. As many of you know, in a lot of these cases, the courts have virtually ignored a lot of the guidance from the administrative agencies that would have been very helpful for people with disabilities. This instructs the courts that these regulations and guidances should be taken into account when interpreting the ADA. At this point there''s, the Act has not been passed. It''s been introduced. There was a hearing in early October, before the House Judiciary Subcommittee on Constitution, Civil Rights, and Civil Liberties. That hearing took place and my understanding is that the, the, there''s been a referral to about four other subcommittees to have further hearings. Whether that ADA Restoration Act is going to pass at this point during this current session is not clear. But it has moved forward and had one hearing already. Some people have expressed concern this is going to make a radical change to the ADA and the sky is falling type of approach if this Restoration Act passes. But in fact there are many state laws that have the same sort of definition of disability that the proposed definition of disability is listed under the ADA Restoration Act. In fact, here in Illinois we don''t have that substantially limited in a major life activity language in our state law. And so I think concerns that this is really going to revolutionize and change cases is overstated. I think what its going to result in is people with disabilities will have an opportunity to get past that first hurdle, show that they have a disability, show that theyre covered by the Act, but then they would still have to prove they''re qualified to do the job with or without a reasonable accommodation, and prove they''ve been treated differently because of their disability, just like you do in any other civil rights case. What it would just be doing is eliminating or modifying the current barrier that people with disabilities are facing, that people in other protected classes dont have to encounter. So that''s sort of my take on the ADA Restoration Act. Im happy to answer questions that people have when we take our break. But in essence a lot of the next set of cases Im talking about could be deemed really irrelevant if the Act passes because a lot of the litigation under the ADA has been whether somebody has a disability or not, and a lot of it involves the mitigating measures I spoke of. And so, if the Act passes, whether somebody has a mitigating measure will not become such a huge focus as it currently is in the cases. But of course the Act has not passed, and so we need to address the current state of the law and how the lower courts are interpreting both the ADA as it currently stands and implementing the Supreme Courts decisions that are still currently on the books. So you will see on the outline on page 1, there are a set of cases regarding mitigating measures. Im not going to take a lot of time to discuss the specifics of each case, but just to kind of highlight the various cases that are going on here. You will see on 2b, I list a few cases where the mitigating measure resulted in the dismissal of the case. Youll see the Berry case involving somebody with Multiple Sclerosis. For her disability of Multiple Sclerosis she used a cane and also medication. As a result, when they looked at her with using the cane and medication, they found she was not substantially limited in any major life activity. Similarly, the Smith case, the plaintiff had lupus and used medication; they found that although she had difficulties, they were temporary once she took her medication. Turning to the next page you also have a similar case involving a device instead of medication: the Preston case involving somebody with a hearing loss and had used a hearing aid. That case is interesting because there was evidence that the plaintiff here only chose to use her hearing aid occasionally. The court said she was not taking full advantage of the assistance her mitigating measure would have given to her. Therefore that undercut her claim that she was a person with a disability. That if she had taken use of the hearing aid she would have been able to do her job better, that sort of thing. The Goodman case is another case involving a device. This person actually used crutches after a back injury. They found with the crutches she was able to do, she was not substantially limited in any major life activity. And then the Carlson case is another case involving medication, this one for a person with epilepsy, and again the court found that she was not substantially limited once she took her antiseizure medication. I would say most of the cases involving mitigating measures found in favor of the employer. I do list some cases where persons with disabilities have been successful despite the fact that they have used a mitigating measure. The fact that I have about an equal number of each cases should not give you the sense that the courts are sort of evenly split on this issue. In the vast majority of cases, people with disabilities who use some sort of mitigating measure unfortunately have lost, but there have been some positive cases for people with disabilities who use mitigating measures because, as youll remember, the Supreme Court said that you don''t necessarily lose your case just because you are using a mitigating measure. You just have to show that, despite the mitigating measure, you are still substantially limited. You see in the Leonard case somebody with bipolar disorder was still substantially limited in grooming and sleeping despite that the plaintiff took medication. Similarly in the Stubbs case, the person with dyslexia was still substantially limited in the major life activity of learning despite taking medication. Then you have a couple of diabetes cases where the persons were able to continue with their case and found that the case should not be dismissed because they were still substantially limited in some major life activity even though they were taking insulin. The Herman case is another good reminder that the Supreme Court instructed us that not only can a person be covered if they''re substantially limited because of a disability but if the mitigating measure they use has side effects that themselves are substantially limiting, then that can be a basis for a disability claim as well. So, you see, in the Herman case they looked at the side effects from the insulin and found that those were also substantially limiting. The next section talks further about substantial limitation but these are cases where the court is looking at whether the person is substantially limited did not necessarily involve a mitigating measure, and in all of these cases the plaintiffs lost. Again, Im not going to spend a lot of time, but you will see a common theme here. In the McPherson case a person with diabetes and the court found that they were not substantially limited in either the activities of sitting or self-care. The Maples case involves somebody that had lost a couple of fingers. That case and the Littleton case are good reminders to plaintiffs that you as a person with a disability, if youre bringing a case, you are responsible for providing evidence of your limitations. A lot of times people with disabilities will testify that they''re not limited in anything and that they are able to do anything that anybody else can in a very empowering type of approach which is very positive in life purposes. But for proving an ADA case it''s really problematic because they''re not meeting the definition by showing that they are substantially limited by saying that they can do the job without any difficulties and they have no other limitations in their lives because of their disability. The Rose case is a good reminder to us also that courts have said if you plead that the major life activity of working is where youre substantially limited, that you not only have to show that you are substantially limited in a particular job, but also have to show that you are substantially limited in a broad range of jobs or a class of jobs. In the Rose case you had a woman who had anxiety. She had a lot of anxiousness when she drove over bridges and on highways. She tried to get a change in her job to a job that did not involve that. They said, well, she may be limited in that particular job, but there were a lot of other jobs that don''t involve driving that she wouldnt be substantially limited in for purposes of work. They found that she did not have an ADA disability. The Curcio case is another example where the persons own testimony undercuts their claims; she testified that she always found a way to perform her duties despite the fact that she had a disability. The court said the fact that she found a way to do her job undercut her claim that she was substantially limited in the major life activity of working. And then the McLorn case, which is the second one on page 5, I thought was really disheartening from an advocate standpoint because this is someone with an allergy and had really severe reactions when encountering latex. Their skin burned and cracked, their blood pressure got dangerously high, they had sleeping problems, couldn''t pick up their kids. The courts said, well, the reaction was severe, but we dont find that it was life threatening. They therefore found it was not a substantial limitation. Here was somebody who it seemed their allergy was really significant and problematic and should be able to move forward with arguing whether or not they were discriminated against. They were not able to proceed because it was not found to be a substantial limitation. Then just the last section I wanted to cover before we take the first break for questions is the major life activities. As you recall, you not only have to show a substantial limitation, it has to be in a particular major life activity. Interestingly, when a lot of the regulations came out originally under the ADA, the federal agencies were clear to say here are some potential major life activities, but we want to make it clear this is not an exhaustive listit is an illustrative list. What this did was invite future plaintiffs to come up with life activities that may not have been listed on that original list when the ADA was passed. What we have seen over the years are a lot of cases being brought where courts have to decide whether a particular thing thats being pled is a major life activity or not. You will see on page 5, interacting with others was found to be a major life activity in the Petro case. It hadnt been decided in the Seventh Circuit, but the Ninth Circuit had said that it is a major life activity. The court presumed that it would be in this particular case. Eating is the next major life activity. That comes up a lot. People with diabetes have been raising that because of difficulties in raising the major life activity of working. They''ve had some success. You will see in the Miller case the person was able to prove they were substantially limited in a major life activity. Similarly, on page 6 in the Davenport case also was able to successfully argue that they were substantially limited in the major life activity of eating. Another interesting major life activity is pumping and circulating blood, which you may have not thought about that initially. That is something that is a major life activity for people to live. It''s an interesting argument because for a long time people with heart disease and heart attacks had difficulties of getting past the argument of whether they had a disability or not. A lot of them were raising working as their major life activity and losing. So, in the Snyder case they said what about pumping and circulating blood. Its something that everybody had to do and that this person was limited in because of their heart ailments. The court agreed and said that is a major life activity. This is a real opening and opportunity for people with heart disease who are bringing ADA cases. Youll see that the courts are split on concentrating; we have cases going both ways. Sexual relations you also see a split. A lot of times these are based on factual issues, sometimes it''s based on courts'' interpretations in different parts of the country. It''s really important to do a lot of research before bringing forth an ADA case and seeing how a particular court is interpreting it or, if youre an employer, seeing how the courts are interpreting it within your jurisdiction as well. You will see the Norden case they found that sexual relations was a major life activity, but in the Ware case on page 7 they found that it was not. Reproduction you may recall in the first Supreme Court ADA case, the Bragdon case, the Supreme Court found that reproduction was a major life activity involving a woman with H.I.V. And the Lederer case is a good reminder that, even though in Bragdon they found that reproduction was a major life activity for her, in this particular case they were not able to do that because they did not, they were not able to show there was an limitation for reproduction in his case, unlike in the Bragdon case. Caring for yourself youll see theres also a split, the Didier case saying that it wasnt a major life activity whereas in the Amick case they said that it was. Similarly also in the walking standing, pages 7 and 8, the Gretillat case, they found that walking and standing was not a major life activity, whereas in Gordon they found that it was, involving someone with arthritis. Again, social interaction, youll see that in one case, the Norden case, they found that socializing was a major life activity and in the Garg case they found that it wasnt. A lot of times these are based on the facts, and as you read through them youll see that some cases are stronger than others. In other cases will see that different courts are taking different tacks in different parts of the country as to whether something is a major life activity or not. The last set of major life activities, on page 9 and 10. Caring for ones children, the Corley case, the court found that that was not a major life activity. I know a lot of parents out there would disagree with that assessment, but thats what the court held. Kneeling and crawling was found not to be a major life activity, again in the Gretillat case that we mentioned before. Sleeping was found in this particular case, the Brown case, not to be a major life activity for somebody with fibromyalgia. I do want to caution that there have been a lot of other cases that have found that sleeping is a major life activity; I just couldnt find one that had been decided within this past twelve months. The one that is most current decided that it was not a major life activity. Partly in this case the person did not plead specific information on the limits of sleep. The court said it has to be a severe limitation. This may be less about whether sleeping is a major life activity, more about whether they were substantially limited or not. A lot of cases are saying that lifting by itself is not a major life activity, and the Lehman case is an example of that. You have running was deemed to be a major life activity, which is interesting because we talked about walking not being a major life activity. Here running is. That shows something of the arbitrariness of some of these decisions. The last case before our break, is the Duncan case on page 10. That is a case that I think has been very helpful for people with kidney disease and Crohn''s disease who have issues regarding incontinence and elimination of waste. More and more courts are saying that the elimination of waste is a major life activity. That has given additional help to people with those disabilities who are seeking to bring ADA cases. So I think at that point it''s probably good to take a break and see if people have questions about the ADA Restoration Act or if they have questions about the definition of disability cases that weve discussed.
Ladies and gentlemen, if you have a question or comment at this time please press the 1 key on your touch tone telephone. If your question has been answered or you wish to remove yourself from the queue, please press the pound key. Again, if you have a question or comment at this time, please press the 1 key on your touch-tone phone. Our first question or comment. Your line is open.
Hi, Barry. How are you?
Good. How are you?
Good. I was just checking on the ADA Restoration Act the way that I''m hearing it from how you describe it. Are we then going to a categorical definition of disability rather than a functional?
Well you have to show that you have some sort of impairment. Yeah, you are showing that you have some sort of diagnosis or some sort of limitation in your life. And then after you get past that then you would not necessarily show that it goes to a particular function or major life activity, if thats what you mean by functionality. You''re right, you don''t have to show that anymore. But I think, you know, it still would have to be a situation where you would probably have to show what is happening in your life beyond maybe a particular diagnosis.
Okay. Thank you.
Our next question or comment. Your line is open.
My question has to do with whether in fact the language references the HIPAA Act and whether there are any limitations around information that can be obtained either by a Human Resource office or by an individual working for an employer that needs verification on disability.
Well, the ADA already has that information. The ADA Restoration Acts not going to change that. There are confidentiality protections that are currently in place for people with disabilities, and well get to that in a little bit into the next session. Basically, it says that you can''t get information generally to have information about the person''s disability. It has to be related to whether or not they can perform the essential functions of the job or if you need information to show that a particular reasonable accommodation is necessary. Once you get that information you have certain confidentiality requirements that you are required to keep that information separate from the personnel records. It cant be disclosed to people in the workplace who dont have a right to know, that sort of thing. But that, that really doesn''t change by the ADA Restoration Act.
Our next question or comment. Your line is open.
Hi, thank you. Very quick point, as I understand the Restoration Act, it wants to focus on the conduct. Such as, looking at it, whether or not an individual basis of a disability as opposed to whether or not they''re substantially limited. Because it seems like the three prongs of the ADA, the last two kind of fell off the map, if you will. Theyre trying to go back to what was the intent of the Act initially. And actually the employers focusing on whether or not this person is a qualified person and dismissing it right then and there, without even going through anything on that. And the other quick thing is, this kind of ties in with, are you familiar with the UPS class action, the first ADA class action that has been certified out of the Pennsylvania, out of the western district?
Yeah. Which case is that? I''m having a hard time hearing you.
It''s the class action. The Mark Hohider UPS, the very first ADA class action. It has been the first that has been certified in the country. But it has been the first, and, talking about it, it''s similar to where they want to bring the ADA Restoration Act to. The way that they''re using the ADA, eliminating people without really looking at what it was about.
I''m not familiar with that particular certification. We''re actually going to talk about a different case that has been certified regarding website accessibility later. We can see if that raises the issue that you wanted. The point that you made before is a good one, and that is the regarded as and the record of disability prongs of the ADA will remain in the definition of disability but they will also no longer have the substantial limitation of major life activity. So, in a regarded as case you would no longer have to show that the employer regards you as being substantially limited in a particular life activity. Instead you have to show that they regard you as having some sort of impairment. For instance, the classic example is, there''s a rumor that someone has H.I.V. in the workplace. The employer takes an adverse action because of that rumor. That is all you would have to show. You would not have to show that they -- you would have to show they regarded you as being substantially limited in the major life activity of reproduction; thats going to be a very difficult thing to prove. But if you take away that substantial limitation of a major life activity, then all you have to show is that they regarded you as having an impairment and made an adverse decision based on that perception. What I mean to say, that will allow regarded as cases and record of cases that have been inhibited by the substantial limitation of a major life activity requirement to allow some of those cases to proceed further than theyve been proceeding in the past.
Again, ladies and gentlemen, if you have question or a comment at this time please press the 1 key on your touch-tone phone.
Barry, why don''t we go ahead?
That sounds great and I think I actually cut off a little earlier than I was supposed to, but I was mindful of the time. Let''s turn back to page 10, which is the essential functions. People will recall to be qualified you have to show that you can perform the essential functions of a job with or without a reasonable accommodation. A lot of litigation has come up as to whether a particular function of the job is essential or not. I hate to keep sounding like a broken record, but you will see cases all over the map. These are very specific fact-intensive cases because whether a particular function is essential in one particular job is not going to mean it is essentially in another job. I just caution you not to be taken away by a particular case that says that, say, attendance or punctuality is an essential function; even though its an essential function of one job does not mean its necessarily going to be found to be an essential function of every job. So speaking of punctuality. The first two cases involve punctuality. The Holly case and the Simon case on pages 10 and 11. In the Holly case the court found that it is not an essential function. In this particular case they found that the job was not time-sensitive. You have a person that is having difficulty punching into a time clock. There were issues whether the time clock was accessible to a person in a wheelchair. They found in this particular job whether or not you were 15 minutes late was not an essential function because it wasnt as if the person was on an assembly line and punctuality was so important. If you contrast with the Simon case on the top of page 11, you found that punctuality was an essential function for a school bus driver, and they said, in order to pick up the kids, you need to be on time. And so they werent required to eliminate that function of the job that the person was having a hard time meeting. Again, it shows the differences that can happen based on the differences of the job. Whether something is essential or not. The Quitto case, right below the Simon case, is a case where, even though it was in a job description and listed as an essential function, the court says that it was not necessarily determinative. A guy who was a cook, he was returned to work with lifting restrictions, and the employer did not allow him to return to work, saying that he couldnt do everything that was in his job description and therefore he was not qualified. The court said that was not the case. That heavy lifting was not an essential function of that job, despite being listed in the job description. Frequency is another thing the courts will look at, whether a certain thing is done frequently, whether that makes it essential or not. For the Russo case, somebody with epilepsy, they were saying that whether or not driving was an essentially function, they looked at frequencywhether or not it was something he did all the time or whether it was an occasional duty would make a difference as to whether or not it was essential. Another common essentially function issue that comes up in cases is whether or not a rotating shift is essential or not. Courts have been split on that over the years. In this particular case they found that the rotating shift was an essential function for a person with diabetes, in the Rehrs case at the bottom of page 11. But in other cases they''ve found that it was not an essential function. We actually handled a case years ago where the employer had alleged that a rotating shift was an essential function. They refused to accommodate the person to work just the day shift because the person had depression and was having problems sleeping, the rotating shift was playing havoc with their sleep and exacerbating the depression. They said the rotating shift was an essential function that everybody had to do it. But then we found evidence that someone also working at that very same employer was not required to do the rotating shift because he was a soccer coach and needed to work the day shift so that he could coach his sons soccer in the evening. The fact that they had accommodated him, it''s a small accommodation because he didnt have a disability, they did not require him to be on the rotating shift was evidence that it was not essential because other employees had been allowed not to have that. If it''s essential you need to be consistent in your application in saying that it''s essential. If you turn to page 12, one of the most frequent things thats raised as an essential function is attendance. Most courts have found that it''s considered an essential function. In this particular case the court relied upon the fact that somebody working for a school, allowing somebody not to have attendance was a problem because they had a policy that absences by teachers was really disrupting the students education and therefore it was an essential function for teachers, too. This particular claim was I think even stronger because they had a policy about attendance. It was not just listed in a job description. The Walerstein case is a reminder that there was a Supreme Court case that talks about the fact that somebody is not necessarily able to meet the disability definition for ADA. Let me back up. You have somebody who was, claimed they were disabled for Social Security application purposes. The employer trying to say because they were disabled for Social Security and received that, that necessarily meant they were not able to do the essential functions for an ADA case. The Walerstein case reminded the plaintiffs and the defendant in that case that when this inconsistency comes up you have the opportunity to explain why you might be unable to work for Social Security purposes but that you would be qualified to do the job for ADA reasons. They pointed that you are entitled to reasonable accommodations under the ADA that might allow you to do a job, whereas under Social Security there is no component for reasonable accommodation when youre saying whether youre able to work or not. So as long as you can explain that inconsistency, you can proceed and show that you are qualified to do the job. And in the Denczak case its important to remember that courts will frequently look at production quotas and find that those essential functions of a job as well. Most courts have found if the production quota is based on fact and others are held to that standard, if a person cannot meet that quota, with or without a reasonable accommodation, they''re found to not meet the essential functions of the job. Moving on to the next section, section C: Medical Examinations and Inquiries. We talked about this a little bit in the last questions. But, basically, you''re not able to ask certain questions about disability or make people go through an examination that would reveal a disability prior to a conditional offer of employment. And the St. Clair versus City of Plano case is the most recent case demonstrating that particular principle. That case involved a gentleman who was a veteran and the employer was requiring him to provide discharge papers, which gave information about his disability; they also made him take a polygraph test. One of the questions in the polygraph test was asking about medical history. They got a lot of information from the discharge papers and through the polygraph test. They found that that was impermissible, questioning about disability prior to a conditional offer of employment. The other main thing to remember in this area is if you do get information about a disability and you make an adverse decision about it, after a conditional offer of employment has been made or maybe for a current pending employee and you ask for maybe a fitness for duty test, that if you make an adverse decision after receiving that information about the disability you have to show that the decision is job related and consistent with business necessity. So the Thomas case on page 13 is an example of that, where they had, the employer had witnessed problems in the workplace for somebody who had an anxiety disorder and required him to undergo a fitness for duty examination. When they did the fitness for duty examination it showed difficulties. The court found that Bennett was justified for requesting the exam to make sure that the employee was able to do the job after the person had been on leave, to insure the safety and make sure that the employee was able to do the job. And then just a reminder that, unlike a lot of the components of the ADA, there are a couple of provisions where you can bring suit even if you can''t prove that you have an ADA disability. This is one of those sections. Not all courts have said this, but the vast majority of courts have said that you don''t have to prove that you have a disability to bring suit for being asked disability related information or being asked to undergo an examination prior to a conditional offer of employment. The St. Clair case that we mentioned before is an example of that, where the person didnt have to prove they had an actual disability to bring the suit for the invasion of giving the pre-employment medical information. Moving on to the next section, you will remember that the direct threat is a defense that can be raised by the employer; if the person is found to be a significant risk of substantial harm, then they can be deemed not to be qualified to do the job. This is typically viewed as a defense that the employer will raise, some courts have viewed it as something that the plaintiff has to prove that theyre not a direct threat and that they are qualified; other courts have said that it is something that the employer has to prove in bringing their defense of direct threat. In any event, a couple of recent cases at the bottom of page 13. The Hatzakos case involved a person with a mental illness -- the employer did not know that they had a mental illness. The employer learned about that and had a doctor review the person. The doctor said that the employee was stable. The employer said, Can you give me a guarantee that this person would pose no risk in the workplace? The doctor was obviously unable to say there was absolutely no risk at all, and the manager felt if there was a possible risk they were a direct threat. The court in that case found in favor of the plaintiff. They said that a plaintiff were not required to show they would pose absolutely no risk, but instead the standard is that they have to show a significant risk of substantial harm. Thats what the employer has to prove, and if they cant do that they cant proceed with the direct threat defense. Then you have the Ward case. Which again had another one of those fitness for duty cases. And when they went through the fitness for duty examination they found there were significant problems with respect to this person being in a workplace. There were threats made. And because they found that the, there was significant risk of substantial harm, therefore they found that it was the fitness for duty test was job related and consistent with business necessity, and they found it was valid to require the employee to undergo that particular examination. The EEOC versus Schneider case is one that is probably the most confounding direct threat case that Ive run into in a while; unfortunately, its from my back yard in the Seventh Circuit here in Chicago. This is one involving a gentleman working for a truck company and he was a driver and he has a condition, neurocardiogenic syncope, which results in some unexpected drop in blood pressure and can result in fainting. When they found that the person had this particular disability they immediately terminated him saying that was a per se disability, that they would not permit the person to be a driver. Despite the fact that there was evidence that with medication it was extremely unlikely that the person would have the loss of blood pressure and then the fainting. What had happened was, this employer had had someone else with this particular syndrome and had fainted while driving and obviously had not been taking the medication and died in a trucking accident. So Schneider has adopted a policy that anybody with this condition is automatically deemed to be a threat and is not qualified to be a driver for them. The Seventh Circuit basically said, Were not going to look at the significant risk of substantial harm; they would uphold this zero tolerance position. An employer is entitled to determine what risk theyre willing to have in the work place. It was reasonable for this particular employer to automatically exclude somebody with this particular label of this particular disability. The EEOC Wal-Mart case is the next one. It involves someone with cerebral palsy; we dont see a lot of ADA cases involving someone with developmental disabilities. That one found in favor of the person with disability. They said that Wal-Mart did not successfully show that the person was a direct threat, especially when there was evidence by the plaintiff''s expert that there were things to accommodate the person do the job, with respect to a particular wheelchair that had an assistive device that helped the person get up and down to be a greeter for Wal-Mart. It''s particularly important for plaintiffs because, it''s the first time in the Eighth Circuit where the court says that it''s the employer that bears the burden of showing that the employee is a direct threat. There are cases where the burden is on the plaintiff to prove that they are not a direct threat or that they are qualified. This case showed that, at least in the Eighth Circuit, it is the employer''s responsibility to prove direct threat. These are going to be the cases that, if they go to trial, would be a battle of the experts back and forth. But again, it allows the person with disability to be able to demonstrate their position and the employer demonstrate their position back and forth, rather than the case being dismissed out at the summary judgment stage. The Haas case is interesting in that its a good reminder for employers that you can''t treat people with disabilities sort of differently than you treat other people with issues in the workplace. In this case somebody was allowed to return to work after having mental health issues in the workplace. They allowed him to return, but required him to have certain monitoring requirements, they said to insure patient safety. But they did not require people returning from other types of medical leave to have these monitoring requirements. This court said that you have to be consistent. You can''t pick out people with mental illness and treat them differently than you have other people who are returning from leave; otherwise, its discriminatory. Let''s shift now to reasonable accommodation issues. Besides the definition of disability, reasonable accommodation is where we see so much of the litigation going on, and again a lot of these are fact-specific, but what Ive tried to do is to identify some of the different categories and types of accommodations. You see the first category we have is interactive process. Many of you will recall when you request a reasonable accommodation there''s a requirement that the parties, both the employer and the employee, engage in an interactive process to discuss what is needed and why and what is available in the workplace to resolve the difficulty the person is having and help the person perform the job. It''s supposed to be a dialogue back and forth. What is challenging over the years is that the courts have really interpreted this differently. Some courts feel that once an employee gives an indication that they need an accommodation it''s the employers responsibility to begin the interactive process and identify the accommodations, and other times others say its the burden of the employee to identify particular accommodations and then that triggers the employers responsibility. So different courts have interpreted this differently. We have some newer cases to look at and see how the courts are doing. The first is the EEOC case on page 15; this is one where they felt that the employee was not required to identify the specific accommodation to start the interactive process. They requested some assistance in the workplace, and then it did shift to the employer to identify the potential accommodation. Because the employer didn''t do it in this case, they found that the employer was in violation of the ADA and upheld a jury verdict. The Jenkins case goes the other way, in favor of the employer. In this case the plaintiff refused the accommodation and they said, because the employer had engaged in the process and identified some potential accommodations, they had done enough under the ADA. The Demshick case is an interesting factual-specific case involving somebody that has a disease where they had vertigo and nausea and vomiting, balancing issues and making it difficult to be in heights. Being on the second floor apparently was very difficult for the person. They had shown a doctor''s note that they couldn''t work successfully on the second floor and asked for the accommodation to work on the first floor. The employer did nothing to further the interactive process after receiving the note. That failure to engage in the interactive process resulted in favor of the plaintiff. The Gilbert case on the top of page 16 is another example of the employer failing to engage in the interactive process. People with disabilities lose a lot of ADA cases for a variety of reasons. But the interactive process and the employer''s failure to respond to accommodation requests or have discussions with their employees about accommodation requests have made it very challenging for employers to succeed in those particular cases. I think a best practices approach for any employer out there is, if you are given a request for an accommodation you need to initiate that interactive process and respond appropriately and in a timely way. It doesn''t mean you have to say that the accommodation requested is what you will provide, but you have to start a dialog to determine what is appropriate in the workplace and what would be an effective accommodation to allow them to do the essential functions of their job. You have a couple of cases under leave as a reasonable accommodation. People were unsuccessful to show they needed leave for an indefinite period. The big important thing if youre a person with a disability and youre seeking leave as an accommodation is try to get as much specific information from your doctor as possible to show when you can return, even though that might have to be updated. In the future, to say that you will be out indefinitely, courts have been hesitant to support that type of approach. I''m going to highlight a couple of others, because there''s a lot of information here on accommodations, but working at home on page 17, you will see cases going both ways. Most of those cases plaintiffs have lost, but there have been a couple of cases, especially the Woodruff case, where plaintiffs have been able to move forward with their reasonable accommodation claims for working at home. Got a couple of service animal cases where people have not been successful in having that as an accommodation. It''s important to show that your service animal is an effective accommodation, and theres also issues of how the service animal affects other people within the workplace. Then if we skip over to the next page, page 19, just a reminder that employers are not required to remove essential functions as a reasonable accommodation, so thats when it becomes very important to determine whether a thing is essential or not, because if its non-essential, and youre successful at showing that its non-essential, then that may be something the employer can remove as a requirement of the job. If it''s essential they don''t have to remove it, they may have to modify how you do that and give you assistance to do it. They don''t have to remove it if it is essential. You obviously have to show that the accommodation is related to the disability. The Boutin case in the middle of page 19. Then reassignment is another very common accommodation that people with disabilities will seek in the workplace. You will notice that all of the cases listed here they found that reassignment is not a reasonable accommodation in these particular cases. You have a split in the circuit in the Huber case, which talks about whether or not the person is required to be given the accommodation of reassignment if there are no other ways of accommodating the person, or if they had to compete for that job. The Huber case went with the approach that you are only supposed to be given opportunities to compete for the job, not necessarily be given the opportunity to do the job if you are qualified to do it. And then there have been a lot of interesting cases lately on whether or not light duty or part-time permanent can be a reasonable accommodation, on page 21, you see that there are cases going both ways on that. I think that, as employers are using light duty, these cases are important in determining whether its reasonable or not. And then the final thing I would like to mention just before we take the next break for questions is, the undue hardship is the defense that the employer can raise if the reasonable accommodation shows an undue hardship in the workplace. That can be a basis for not providing the accommodation, and its real important. You look at the Friends case on page 22, the factors that an employer has to show to show undue hardship. You can''t just say thats an undue hardship. You have to give actual basis for why it would be an undue hardship, and I think the Friends case is a good listing of the factors an employer should consider when making that argument. So, Robin, why dont we take a break here and see if anybody has any additional questions. And then we''ll move forward with the rest of the outline.
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Hi, I just want to let you know, except for when is talking, there''s, there''s a considerable amount of feedback. I dont know if were the only place experiencing that. We just wanted to pass that comment on.
Yeah, I''m getting a lot of feedback during the question and answer session, too. Im having a hard time hearing those questions. I''m not sure what the difficulty is, but we''re experiencing it on this end as well.
Our next question or comment. Your line is open.
I work for the executive office of transportation here. My question has to do with labor relations agreements. When in fact employers are entering into agreements with labor do they have to factor in the ADA requirements around reasonable accommodations or any other factors that relate to how one is able to obtain employment with an employer?
I''m not sure this goes exactly with the question, but the one case that stands out regarding labor relations agreements, that sort of thing, is the Barnett case that the Supreme Court decided a few months ago. And basically that said that if there''s a conflict between reasonable accommodation and collective bargaining agreement, in most cases the collective bargaining agreement will trump the requirement to do the reasonable accommodation. Specifically, they were looking at the issue of reassignment and seniority and whether or not, if you have a seniority provision in place, whether a collective bargaining agreement or otherwise, whether that requirement trumps the requirement to place somebody as reassignment into a vacant position. The Supreme Court said that the collective bargaining agreement or the seniority policy normally will trump the reasonable accommodation except if you can show that the employer has not been consistent in enforcing that particular agreement. Or there are other extenuating circumstances that would allow, you know, the reasonable accommodation to be effective and not be an undue hardship on the existing seniority agreement. But, other than that, I haven''t seen a lot of things involving labor relations with respect to reasonable accommodation.
Can I do a follow up question? The follow-up question to that is, whether you are in the mitigation aspect of labor relation disputes, claims from employees regarding labor relation disputes, does in fact your labor relations department have to look at the ADA reasonable accommodation requirements in order to factor those into the decision?
Well, it would depend on what the agreement says and what the conflict would be. Generally if there''s a way to incorporate the reasonable accommodation, that''s a positive thing an employer should do as part of the overall treatment of people with disabilities in the workplace. If the organizing group, both on the employer''s side and union side, can take that into account, thats helpful for diversity in the workplace. But as far as actual cases, Im not aware of any beyond Barnett and the subsequent cases on that issue.
You might want to get folks to make sure that their mute button is on. That is probably the source of the feedback.
I think we only have about 20 minutes left, Robin. Maybe we should just move back. People are having a hard time hearing during questions. We can just finish up the outline.
Sure, go ahead.
The next issue is disability harassment and weve talked about this in the past. The main issue on disability harassment is you have to show that the harassment the person is experiencing is severe and pervasive enough to alter the employment situation. You have a listing of cases both where the person with a disability has won and the person with a disability has lost. Usually, you will see that it goes to whether or not a particular way somebody was treated was severe or pervasive. Mainly, people with disabilities have won when they can show that there''s been physical threats or injuries in the workplace. Or, like in the Navarre case on page 23, the person was pushed down and threatened with violence as well as having to experience derogatory language, or if it''s a situation where it''s so outrageous, like the recent case against a Subway restaurant, that got a lot of press regarding a $165,000 verdict against the Bob Rich Enterprises, where they were clearly harassing a person who was hard of hearing. Retaliation is something that is a lot more litigation than in the past. Remember retaliation you have some sort of an adverse reaction in the workplace because you are exercising your civil rights. Typically, the classic example is if you are denied an accommodation, you filed an EEOC claim and then youre fired, and youre claiming that you were fired not because of your disability but because you were exercising your civil rights. In those cases it''s important, like in the cases involving disability inquiries, you are not required to prove that you have a disability, you have to show that you were exercising your civil rights and were treated adversely because of that exercise of civil rights. You will see a lot of cases where people have won and people have lost on pages 24 and 25. Usually it''s because the person has had, when they lose these cases they''re unable to show causal links between exercising their civil rights and the adverse actions. Trying to make that link is really the important component of those cases. If you turn to page 26, there are a lot of recent cases in regarded as. This is not to be unexpected because if you are unable to prove that you have an actual disability, a lot of people are then turning to showing, Well, I may not be able to prove I have an actual disability, because maybe I use a mitigating measure, or some other reason Im not substantially limited in a major life activity, but you can try to prove that you are regarded as having a disability by the employer. A lot of these cases are difficult to prove also. Even though it is a different option than actual disability, a lot of these cases plaintiffs are losing as well. You will see those cases listed on pages 26 and 27. And again, it''s hard to make a lot of generalizations, I invite you to read through the cases to get a sense of something thats going on. But a lot of times you will have cases that have similar facts, the court will hold a different way. Don''t put too much into one particular ruling. Hopefully these rulings are helpful though and instructive on how some courts are evaluating the facts in particular cases. If you look on page 27 you will see cases where the courts have upheld the regarded as claim by people. But the thing that I wanted to point out is that a lot of times you have the employer''s testimony used in the situation. If the employer said something in the workplace that demonstrates that they regard the person as having a disability, so, for instance in the Keogh case, there have been discussions about accommodating someone whos returned from leave. They used that as evidence to show, the fact that they were seeking to accommodate the person shows that they did regard them as actually having a disability because typically many employers arent going to work on accommodation issues unless they perceive the employee as having a disability. Um, then I think, I don''t want to go through all of them, if you turn to page 28, you see a variety of other cases where people are, are being found to be regarded as. The Russo case is the one to point out. Plaintiffs that point out that they''re regarded as limited in working, that''s a difficult argument for plaintiffs to prove. The employer says that they perceive them as unable to do their particular job. The Russo case is a case where the person did claim substantial limitation and were regarded that way by the employer and they won. This is not the typical case, but it is one where somebody was able to do so. It''s involving somebody driving and they showed other jobs that involved driving, and the fact that they were excluding him from all driving jobs was enough to show that they regarded them as being substantially limited in the major life activity of working. Um, then if you turn to page 29, the forgotten prong of disability is the record of cases. I wanted to point out there was a record of case that was decided this year, the Norden case. That was somebody with a record of a past disability, and were able to show that the extensive medical records that documented their impairments were enough to show they had a record of impairment and were covered by the ADA. The next section talks about suing under Title II and whether you are immune. We spent a lot of time on this last year and actually these cases have been slowing down. Most of the cases coming are whether or not you can bring suit for damages in federal court under Title II in correctional facilities and in education. You will note that in the two correctional facility cases they were not able to bring their, their ADA claims. But in the education case, the Bowers case on page 30, they were able to move forward. There wasnt an argument that the college association had sovereign immunity here. Then the next set of cases is the parking placard surcharge. We talked about these last year and there was a new case that came out last year that upheld the fact that charging somebody a surcharge for a parking placard is a violation of Title II. The state had argued they don''t charge people extra for disability license plates with a designation but, and so, the fact that they charged people for the placard they had an alternative of getting the disability license plate. The court said that people don''t drive with disabilities a lot of times but they need the placard when they travel with other people. We talked about the website issue. And there has been a lot of press on the Target case. On page 31, we talk about that. That has been designated as a class action. It''s interesting its been designated a class action for all those that go to the website that are legally blind. But theres a sub-class in California, there''s a claim in California as well. This is a complex case. It''s a wake up call to businesses that have websites that there is potential liability for having an inaccessible website. If you are trying to sell products, not just in a store, but also on a website, you should make sure that it''s accessible to people with visual impairments. The case has been ruled as a class action and moved forward after several attempts to dismiss the case. It will be interesting to see how this plays. I think it''s a good reminder that even the though ADA did not say anything about the websites, because websites were not a factor in the early 90s, courts are starting to look at that under Title III of the ADA and potentially under Title I as well. I also wanted to mention in addition to litigation going on there''s a lot of actions where people are negotiating with employers, I give you a, a link to the Radio Shack agreement reached with the American Council for the Blind of the bottom line that changes to their website. We worked without going through litigation on a case with LaSalle Bank here in Illinois, we worked with them to voluntarily change their website to make it accessible to people with visual impairments. There''s litigation efforts and negotiation efforts that are resulting in changes in website accessibility for people. The accommodations for post secondary students, the general thing happening there is people successful in education have been seeking accommodations later in their career are having a difficult time proving that theyre substantially limited in the major life activity of learning, because they''ve been successful before they get accommodations. There''s been a challenge for post secondary students without accommodations in the past. An interesting case on page 32, with respect to self-evaluation transition plans, it said private individuals can''t enforce the fact or can''t sue a municipality or states failure to engage in self-evaluation or transition plans under the ADA; the Department of Justice obviously could move under that issue and have under a lot of their civic access projects, but this case said there''s not a private right of action if they fail to undergo that transition plan. The accessibility of currency got a lot of press, and, while it isnt going to apply to a lot of people on the phone, regarding access to currency and responsibility under the ADA as a federal requirement, I think one thing that is helpful, it might show analysis for future undue hardship cases. The U. S. Treasury had said it''s an undue hardship to make currency accessible, and the court went through a lot of discussion about the factors you look at regarding undue hardship and undue burden. Even so, it''s unlikely to have a lot of future currency types of cases, but the undue hardship analysis may be relevant for people. The other big area of litigation thats happened this year that I wanted to try to get to before we ended today is when you are bringing claims under Titles II and III, whether or not you have standing to sue. Usually what happens in these cases, courts have said, because you are not able to get monetary damages, especially under Title III, you are only able to get injunctive relief, that is, making accessibility changes at a particular business, that you''re not going to be able to succeed if you''re not able to show that you are going to frequent that establishment in the future or not. You will see a list where plaintiffs have been found to not have standing to bring these suits. Typically it''s because its too speculative under the ADA whether or not they would be coming back and having that access problem again. The Martin case is a classic case where a person who is deaf was unable to get an interpreter a couple of times and they sue about that. The court says that under the ADA it''s too speculative as to whether youd have that problem again and you don''t have standing to sue, although they were able to sue under the Rehab Act because this hospital received federal funding. You will see all on page 34, lot of it is because it''s too speculative as to whether the plaintiff is going to revisit restaurants and hotels and other businesses, so they would not be able to sue under Title III. Then youll see on page 35 a lot of cases where people are able to sue under Title III. People show they shouldn''t have to show it would be, they have to come back each time to keep their suit alive. The Access for All case in the middle of page 35 talks about its an exercise in futility that a person has to come back and show that the hotel is still inaccessible for them to continue with their ADA suit. The fact that they''ve been denied access to a hotel should be enough to proceed with their claim of failure to provide access under Title III. The other thing that has gotten a lot of press is on page 37, that is the sort of multiple people who file many, many Title III suits for access. The Molski case, the second one thats listed here and got a lot of headlines, this is someone who has filed over 400 ADA and state law access suits. And this particular plaintiff was found by the courts that the complaints were not creditable and they were an effort to get cash settlements. A lot of accessibility was not achieved by these cases. This particular plaintiff and his attorney would settle more cash and then move on. What is interesting is that the court has now required for this person to file for Title III again they have to get leave of court. They have to go to court and get permission to file suit. Which is very rare. You usually do not have to get permission to file a suit. So the person, if they want to file suit in the future, their lawyer is also required to do this, will have to get permission and show the reason and this is not a contrived claim, it has merit, and they hope to seek accessibility as a result of the suit. What I hope is this doesn''t taint other''s efforts to try to get or increase access for people with disabilities. There are a lot of positive suits that have gone forward. I didnt mention it, but on page 36, the Bruni case, somebody was a tester, who goes out and tests whether or not places are accessible. The court ruled that they had standing. Access for All versus Absecon Hospitality Corp. on page 36 also said the fact that a person was a frequent litigant made them more credible because they were clearly interested in access for people with disabilities. I think you know, you have some people out there that are really working hard to make systemic change and some courts think that is great and you should be able to continue doing that. But then you have others, like on the Molski case where the courts find that some are abusing the process and are going into litigation more personal gain. Interestingly theres also just been some cases on zoning ordinances. You have three positive cases where zoning ordinances have been found to violate Title II. These are pretty new. I havent seen many cases involving these. People who are involved with municipalities that are passing ordinances potentially could screen out people with disabilities in certain sections of municipalities should take a look at these cases. Then you see the last section on page 38 and 39 a couple of cases where police departments have been sued for the death of a person with a disability under the ADA. It''s a unique way to address the problem of accommodating people with disabilities, particularly those with mental illness who are in peril and have resulted in the death of those individuals. You will see in one case the police were held to be violating the ADA, in other they were found not to be liable under the ADA for failure to train for people with mental illness. So, um, that''s all of the cases. Robin, do we have time for more questions?
Okay. Thank you, Barry, very much. I do apologize to people who experienced some technical difficulties. We''re not sure what the issues are, 100%. We do apologize if it interfered with your hearing the session today. This concludes our session today. We want to thank Barry for his time and efforts on our behalf. I want to remind people that the transcript will be available within ten business days on the www.ada-audio.org website, as well the digital recording of the session for you to access. This session has been brought to you by the national network of the ADA Disability and Business Technical Assistance Center, which are regional centers across the country. Contact your regional center; you can call us at 1-800-949-4232 that''s both voice and TTY. Or to locate the center if youre not familiar with it, you can go to www.adata.org and there''s a clickable map and youll be able to identify the center that serves your particular geographic region. I invite you to join us next month in November for our session on the 13th of November. Please note the difference in date. We typically have them on the third Tuesday, but because of the holidays in November we''re moving that up a week. We have Sharon Rennert from the Equal Employment Opportunity Commission joining us. This is an open question and answer session with Sharon related to the Equal Employment Opportunity Commissions efforts to enforce the Americans with Disabilities Act as well as to provide technical assistance. This is a session that we''ve had in the past. People have expressed positive comments about being able to engage the EEOC in specific questions related to filing complaints, specific findings, technical assistance, and other things that the EEOC has done to advance the ADAs employment provisions. So please join us. Again, to find out the full schedule for 2007-2008 go to the www.ada-audio.org website. We want to thank Barry for his time and efforts today. And thank all of you for joining us. We hope that you have a good rest of your day, thank you very much.
Ladies and gentlemen, thank you for participating in today''s conference, this concludes the program. You may now disconnect. Everyone have a wonderful day.