Good day, ladies and gentlemen and welcome to the Legal Update: Review and Analysis of Key Concepts 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 audio assistance during the conference please press star then zero to reach an Operator. I would now like to turn the call over to Robin Jones.
Good morning or good afternoon everyone, depending on where you might be calling from today. And welcome to our November session of the ADA Audio Conference Series. This series is brought to you as a program of the National Network of ADA Centers, and we are delighted to host all of you today. And we hope that you will be joining us for the next 11 sessions, or 10 sessions I guess after today, for the remaining of our year. We will in a minute give an introduction to our speaker and turn the topic over to him. But I just want to remind people that this program is being recorded, and there will be a transcript of the program available and posted to the www.ada-audio.org website within approximately 10 days following this session. Individuals are joining us today using the telephone. Some are also joining us using streaming audio on the internet. And individuals are also utilizing real-time captioning on the internet, so a variety of different methods and modes. We will be taking questions from the audience throughout the presentation. Our speaker will be breaking at different points to engage all of you in a Question and Answer period. You will be receiving instructions from the Operator in regards to how that will happen. Hopefully all of you have been able to access the materials for today''s session. Our speaker is Barry Taylor and he has prepared a very detailed outline and handout for you that will discuss each of the cases that he is going to be going through today. So hopefully you have obtained that through your registration process as they were posted on the www.ada-audio.org website. At this time let me introduce Barry but before I turn the telephone over to him. Barry Taylor has been working as the Legal Advocacy Director for Equip for Equality, Illinois Protection and Advocacy system agency, since 1996. In this position he supervises legal services, self-advocacy and training programs. He has also overseen litigation in many different discrimination cases including successful federal ADA suits against a variety of different organizations including the Medical Examiners Board, the Chicago Police Department and the Chicago Transit Authority. And he is currently counsel in a class action suit on behalf of people with developmental disabilities living in large private institutions who are seeking community services. He oversees the self-advocacy training project which has trained thousands and thousands of people, over 23,000 people, on ADA, guardianship, transportation, voting, employment, and special education. He gives a lot of training on the ADA across the country. He is also, he along with another member of their staff are lead on our Legal Webinar Series that is another program that is offered by the National Network of ADA Centers. And Barry will probably be referring to that today as he will be going into some of these topics that we''ll be discussing in today''s session in more detail through that Legal Webinar Series. You can read more about Barry''s background and some of the areas that he has worked and some of the organizations that he has worked with prior to joining Equip for Equality in his bio which is posted on the www.ada-audio.org website. Without further ado, since we have a lot of information to cover today, I will turn over the microphone to Barry. Barry, go ahead.
Great. Thanks, Robin, and it is great to be with you and, your audience again. Today, in the past what we have done is sometimes just do a review of all recent ADA litigation. But today what we are going to do is do a little bit more focused, and focused on eight specific topics and look at trends and possible conflicts among the courts. And most of the cases that you will see are, are very recent cases. Most within 2009 and some even that have been decided within the last week or two. So hopefully this will give you sort of the latest update on some of the emerging topics under the ADA. We are going to break the session up into a couple of parts. First, we are going to talk about five topics. The first topic covers all titles and the second and fifth, through fifth topics covers employment. We will take a break; see if there are any questions. And then we will go back and look at the sixth through eighth topics which are looking at emerging issues under Titles II and III. Those of you who have participated in these sessions before know that a lot of times we spend a lot of time discussing the definition of disability and litigation under that. And that has dramatically changed in the last year because we have the ADA Amendments Act. I am sure all of you are familiar that Congress passed that back in September of ''08, and basically said that, the courts had gotten it wrong. They had taken too narrow a view of the definition of disability and said that courts from now on shouldn''t be really spending a lot of time trying to figure out the definition of disability. But really should be focusing on whether entities have complied with their obligations under the ADA. So I think as more cases are filed we are going to see some new issues coming up that haven''t been addressed as much as the definition of disability, which has really predominated the litigation under the ADA since it was passed. And thus far, because the ADA Amendments Act is relatively new there haven''t been many cases that we can discuss today. But one of the issues that has come up is whether or not the ADA Amendments Act would apply retroactively. Meaning, conduct that occurred prior to the effective date, January 1, 2009, would be interpreted under the ADA Amendments Act or under the previous analysis of the ADA. And generally the Supreme Court has found that statutes should not apply retroactively. And the reasoning behind that is the courts have felt that that is really unfair to hold a defendant liable for a standard that is actually articulated after the alleged violation occurred. And so far we have a number of Circuit Court of Appeals that has looked at whether or not the ADA Amendments Act applies retroactively. And as you will see on Page 1 at the bottom of the outline we have cases from the Sixth D.C. Circuit, Seventh Circuit, and Fifth Circuit that have all said that the ADA Amendments Act should not apply retroactively. And I have heard a couple of different EEO speakers talking about the ADA Amendments Act, and it appears the EEOC has the same position. So I think generally we can all assume that the ADA Amendments Act will not be applied retroactively. However, there is one case that I think is important to note before we leave this topic. And that is the Jenkins case at the bottom of Page 1. And that was the case where the plaintiff wasn''t speaking monetarily, but was only speaking injunctively, meaning non-monetarily, some sort of change. In Jenkins, the plaintiff sued the National Board of Medical Examiners. He is a person who had a learning disability and had been seeking accommodation on licensing exam. And he filed suit under the ADA when that accommodation or modification to the test was not provided. And the District Court found that he did not have an ADA disability. The case was then appealed up to the Sixth Circuit, and the question was whether the ADA Amendments Act should be applied retroactively. And the Sixth Circuit said yes, we actually think it should. And they recognized that while generally statutes aren''t applied retroactively; there was Supreme Court precedent that said that statutes should be applied retro or can be applied retroactively when the only thing that the plaintiff is seeking is that injunctive relief, the non-monetary relief. And the reasoning behind that is that, you know, they were, the plaintiff was seeking the right to receive an accommodation on a test that would occur in the future, well after the ADA Amendments Act would, would be in place and would be effective. And therefore, it wasn''t this thing that he was seeking from the past. He was seeking something in the future. The other issue that came up in that case is the plaintiff was also seeking the statutory attorney''s fees that are permitted when you are successful under the ADA. And the defendant had said well, you know, attorney''s fees, those sound like monetary damages, so therefore it shouldn''t be applied retroactively. And the Sixth Circuit said, again looking at some prior Supreme Court cases, that attorney''s fees are not considered a damage of action. They are actually related to the main cause of action which is seeking the injuncture relief. And therefore, the fact that they were looking for attorney''s fees along with the change in the timing of the medical examination did not change the, the Sixth Circuit''s analysis. And so therefore, the National Board of Medical Examiners was required to, they interpreted the definition of disability under the ADA Amendments Act for this person who had a reading disorder as opposed to the prior precedent out there. There is another case that has sort of that mix, the Nyrop case right under there on Page 2, where the employee was seeking both injunctive relief, which is a reasonable accommodation but was also seeking monetary relief and damages. And when you have both injunctive relief and monetary relief, courts are saying that then that is a case that you would not apply retroactively. And so that is one where the, the Court did not apply the ADA Amendments Act retroactively, even though a component of what the plaintiff was seeking was the injuncture relief. Well, since we don''t have a lot of cases, really any interpreting the ADA Amendments Act beyond this retroactivity issue, what I thought we would do for just a couple of minutes is just look at potential areas where we might see litigation in the next year or so as new cases come down. As you probably are all aware of, is when the ADA Amendments Act was passed, the Congress had decided to expressly put in a list, a non-exhaustive list, of major life activities. And if you recall, prior litigation was, there was quite a bit of prior litigation about whether a certain activity was a major life activity under the ADA. And because it wasn''t in the text of the original ADA, that gave rise to a lot of litigation. But now you see that the, the actual major life activities, there is a list that are, that are in the text that Congress has put in there. And most of these major life activities that are listed there under 3b on your outline on Page 2, most of these activities are ones the EEOC had recognized previously. Congress actually added three more: bending, communicating, and reading. And then as, people are probably aware Congress also added some major bodily functions that further expand those potential life activities that are listed in the text of the ADA. So I think generally if somebody has, can allege a major life activity that is on either of these two lists, there shouldn''t be litigation over whether it is a major life activity. There may be litigation of whether that there is a substantial limitation in that major life activity, but not whether it is a life activity, a major life activity or not anymore. Because Congress has put it expressly in the text of the ADA, rather than allowing courts to decide whether to look at regulations or not when there were no major life activities listed under the original ADA. Turning to Page 3 of the outline though, I think what we may see are some litigation over those activities that aren''t listed in the ADA Amendments Act. So for instance, in its Notice of Proposed Rulemaking, the EEOC has listed three additional activities that aren''t in the text of the ADA: interacting with others, reaching, and sitting. And I think because those aren''t in the text themselves, even though Congress has given the EEOC expressly the right to interpret the definition of disability which some courts do not think they had before, the fact that they are not in the text of the ADA may give rise to some litigation. And I think especially interacting with others because that was an issue that the Courts did differ. And you will see a couple of cases that went different ways on whether that is a major life activity or not. Similarly, the EEOC has listed a number of major bodily functions and those are listed under Roman numeral II there, the ones that weren''t listed expressly in the ADA Amendments Act. And again because Congress said it wasn''t an exhaustive list, the fact that these are listed in the regulations doesn''t mean they won''t be considered major bodily functions. But because they aren''t in the text themselves that may give rise to some litigation. I think one in particular, the musculoskeletal system, because over the years there have been quite a number of back impairment cases that have been filed under the ADA, may be where we see some litigation. One thing that people with disabilities and their advocates should remember though is that you don''t have to rely on just one major life activity. So if you have somebody with a back impairment and they are going to rely upon musculoskeletal system as a major bodily function, because it is not in the text of the ADA it may make sense to look at other major life activities that are listed in the text of the ADA such as lifting which is something that commonly affects a major life activity that is impaired by involving people with back impairments. The other thing I think we might see some litigation for major life activities are those that were not only weren''t listed in the ADA Amendments Act text, but are also not identified, at least currently, in the EEOC''s proposed rules. And for instance, sexual relations is one that has been litigated over the years, but it is not listed in the text of the ADA Amendments Act. And it is not currently listed in the EEOC''s proposed regulations. Again, because both Congress and the EEOC have said that it is not an exclusive list it doesn''t mean that it can''t. Sexual relations and others that aren''t listed can''t be recognized as a major life activity. But because they aren''t listed, again that is when you are going to see litigation because there is a difference of view because nothing is expressly listed. Turning to Page 4 of the outline the, another issue I think that we will see litigated is Substantially Limits under the ADA. Before the ADA Amendments Act was passed, that is where we saw a lot of litigation including mitigating measures and whether certain people were substantially limited in activities that were essential to people''s daily lives. Those were a couple of the Supreme Court cases that had been decided previously. But that Congress was really clear that they repudiated those previous Supreme Court cases, and they wanted the substantial limits to, to be less of a stringent standard. And they expressly told the EEOC to change how they interpret it and, and again they, they said really, we want to focus not only on the definition of disability, but whether people are complying with the law or not. And so I think we generally have, should have less litigation on this issue because Congress has said that is not where they want the focus to be. And it should be easier for folks to be covered under the law. But because the terminology is still one that is open to interpretation there is anticipated there will continue to be some level of litigation on this issue. Where I think we might also see litigation that we haven''t seen as much of is on things that are not part of the definition of disability. So you will see number 5 on Page 4, that since Congress is saying we should look less at the definition of disability and more on whether people have complied with the ADA responsibilities, we are going to start looking at some of those issues. Like whether somebody is qualified, or whether the accommodation of the person who seeking it is an undue hardship. We haven''t seen as much litigation on those issues as we have on the definition of disability. But I think what we are going to see is, is a shift on that. As Robin noted, we are doing some more in-depth analysis of some ADA topics and, and litigation under the ADA. And a series of webinars over the next 10 months, and we are going to have a session on litigation under the ADA Amendments Act next September. So plan ahead, September 29th. We wanted to save that as the last session for our webinar series because we wanted to give as much time as possible for some litigation to come down. But if you are interested in that Legal Webinar Series, if you are not familiar with it you can go to www.ada-audio.org and while there were charges for these webinar series in the past they are now going to be free, so we hope you will join us. We have six different webinars planned, including one on litigation arising under the ADA Amendments Act. So now we are going to shift to an emerging topic that there has been some litigation. And really focused on some of the issues that have come up quite a bit in the last year. And that is on the issue of, of showing that you are qualified or whether you can meet a particular essential function. I am sure all of you are aware that one of the things you have to do under the ADA Act if you get past proving you have a disability is show that you are qualified. And part of being shown that you are qualified to do the job is to show that you can perform the essential functions of the job with or without a reasonable accommodation. And so there is four different specific job functions I just wanted to focus on quickly today to alert you to some litigation that has been coming up. One of the ones we have seen a lot of litigation on, is the issue of whether lifting is a major life activity. Excuse me. Whether lifting is an essential job function. So let''s be clear here. I misspoke. This is not an analysis of whether these particular things I am talking about are major life activities but instead, whether they are essential functions of a particular job. So this is after the person proves they have a disability, and then you are determining whether they are qualified and whether they can perform the essential functions. And so this litigation is focusing on whether particular functions are essential or not. And if they are essential, generally the rule is you don''t have to provide accommodations for that. And so lifting is one of those essential functions that is sometimes raised in litigation. And you have got two cases here. The Calvo case which is a case involving someone who worked at Walgreens who had taken medical leave. And when they returned they were having a hard time lifting and, and were restricted from lifting anything of over five pounds. And Walgreens argued that lifting was an essential function, and they pointed to the job description and talked about that there was testimony that, you know, it was a regular part of the, the assistant manager''s job. But ultimately, this is a Florida case, when it went out to the Eleventh Circuit, they found that there was a material issue in fact of whether lifting was an essential function for this particular job. And they talked about how, you know, the job description had 23 different functions listed, and whether or not, and only one really focused on lifting more than five pounds. But I think the most crucial thing here was that they showed that when the, the plaintiff had returned from an earlier leave they weren''t able to lift either and they were able to get other people to assist them. And that the person who had overseen the assistant manager had said that, you know, the plaintiff had done fine with the job and nobody had ever complained. And so what they had shown was past performance did not require lifting, even though there was restrictions. And therefore that at least raised a question whether or not lifting was an essential function based on the previous not requiring the person to do the lifting. So that was one where because there was this dispute, the Court said we are going to send it back down and have a trial on whether or not there was discrimination of whether lifting is an essential function. The Crook case goes the other way, and that is where the person had was actually had a variety of impairments. And they had signed some sort of document to cancel, trying to get a, a loan canceled, saying that they were unable to work and that they could not do lifting. And then later they tried to. They applied for a job and got one, and said that they could lift. But then after being hired they said they couldn''t lift. And so there was this back and forth on whether the person could lift or not. And there were a variety of issues that came up, even including whether the person had a disability or not under the ADA. But one thing the Court said in this was that they found that lifting itself was a, was an essential function for this particular job? I think the fact that the person had said that they could lift, and then once they were hired said they couldn''t lift, might have influenced the Court''s decision here. Another issue we see coming up with respect to essential functions is this whole in the medical or correctional field involving some sort of physical interaction with people called take-downs. And that is when you have to physically get involved with either a patient or a prisoner, depending on the context. And again, the courts have been split here. You have got the Hennagir case where a physician''s assistant had a number of different physical impairments. And said that they couldn''t go through training that involved take-downs and direct physical contact because of their disability. And they tried to get the employer to take away that requirement. And the, the employer refused and said, you know, that is an essential function, you have to be able to do that. And ultimately the Court said that it was an essential function and, and was not required to be taken away as an accommodation. But then you have the other case on this issue on Page 6, the Johnston case, which said that a clinical nurse who was being required to do patient take-down procedures that ultimately was determined not necessarily to be an essential function for that particular job. And again, like in the Walgreens case we talked about before, here you had someone who showed that she had worked in a position for four years without utilizing this procedure. And that undercut the employer''s argument that, the physical take-down requirement was not necessarily an essential function for a nurse. Another essential function issue that comes up a lot is the issue of shift rotation. The general rule is that if there is a requirement for employees to rotate shifts, like work different times during the day or rotate among different job duties within the workplace, that those happen generally deemed essential by courts. And that employers aren''t necessarily required to accommodate that. And the Gorney case that is on the middle of Page 6 there is a good example of that where that people were not only required to work 8:30 to 5:00 if you were an engineer, but you also had to rotate with other employees to be available to respond to after-hour requests as well as weekend calls. And when the person involved in this case returned from medical leave, they had requested an accommodation to not have to work those different hours and rotate with other employees. The person was trying to get his sleep under control because of some mental illness and migraine issues. And the Court ultimately decided that they were, it was, the employer did not have to grant that reasonable request, the reasonable accommodation request. And that the person was not qualified to do the job because the rotation and working after hours was an essential function. The Turner case I would say is more of an exception in this area. But this is a case where the Court went the other way and found that a person who was thought to not have to do a particular job where there was rotation within the workplace, and that one position was detrimental to his disability, was not required to rotate among the different functions within the workplace. And found that it was a question of fact and, and that the plaintiff was entitled to go to a trial. One thing that was interesting in that case that they said was, you know, the person wasn''t hired to rotate positions. They were hired to do the job and they generally could do the job. Even if they weren''t able to do one of the particular rotation areas, they weren''t hired to rotate positions. That wasn''t a specialized function that they were hired to do. Then the fourth issue that comes up a lot is attendance, and I would say the general rule is that if employers are able to show that attendance is an important aspect of the job. And that they take it seriously and apply that consistently, that generally of course it can be differential in finding that attendance is an essential function. And so you have the Rios case which says that as well as the, the Miller case which says that. And again, I think the common thing in both these cases is that the employers, when the person did not meet the attendance requirements, did act upon it, were consistent upon it. And then made decisions based on that and didn''t use that as sort of like an excuse later. It was something they were consistent on in the workplace. Another issue that we see emerging this last year is the issue of when somebody makes inconsistent statements about their ability to do the job and to perform essential functions. People might remember that back in 1999 the Supreme Court decided a case on this issue. It is the Cleveland case in the middle of Page 7. And you might recall what this was involving. Is when somebody says they can''t work for purposes of applying for Social Security? But at the same time, or in the context of that issue, they claim that they are qualified to do the job. And so the question comes whether or not the fact that they have said they are unable to work should be used against them when they are trying to pursue their ADA claim. And the Supreme Court said that we are not going to automatically say that somebody who says they are unable to work for Social Security purposes is therefore unqualified to do the job for ADA purposes. But instead, we are going to give plaintiffs the opportunity to correct or to explain any inconsistency between those two positions. And the Supreme Court talked about the fact that the definition of the disability under Social Security doesn''t have a reasonable accommodation component. And so somebody could be unable to work for Social Security purposes but they had qualified to do the job. And the ADA they received an essential, received a reasonable accommodation. And so you have a couple of examples of these cases. The Butler case at the bottom of Page 7 where you had somebody who had made inconsistent statements about their ability to work. And they had argued that there were different time periods between when they said that they couldn''t work and then when they pursued their ADA claim. But the Seventh Circuit said really, you know what? You are pretty much saying that throughout this time that you are unable to do the job. And so while the Seventh Circuit said it is possible for you to say that sometimes when you applied for your, when you say you are unable to work and then later it changes because disabilities evolve and change over time, that that sometimes can be a valid reason why there is inconsistent statements. Here there really wasn''t a difference over time between when the person said they couldn''t do the job and they were pursuing their ADA claim. The Bisker case on Page 8 though is a good example of when somebody says they are unable to work for Social Security purposes, application purposes. But then show that they are able to do the essential functions of the job under the ADA because of the opportunity of having a reasonable accommodation, so that plays up that point. The only other issue I wanted to bring up for the qualified and essential functions is this concept of a 100% healed policies. And we see these a lot when people are returning from leave and employers are adopting policies that say you are not able, we are not going to allow people to return from leave unless you can show that you are 100% healed or have no restrictions. It depends there is different language that is used out there, but that is the general concept. And the general rule on this, the courts have generally said that they do disfavor these kinds of policies because really these policies do not take into account reasonable accommodation. They say you have to return without restrictions. Well, sometimes people when they return need to adjust to the workplace and have some modifications or accommodations to allow them to do the job that they didn''t have before they took the medical leave. And if you require people to come back and not have any kind of restrictions, basically you are saying they can''t return to work and receive an accommodation. And the EEOC has been very consistent on this, and as well as most courts. There are a couple of cases here, and the Street case is one where the Court went differently here. They upheld this 100% healed or released without restrictions policy. But I think it is important to show that, or to note that this is, this is an exception to the general rule rather than how most courts interpret it. The Lee case is much more common where courts are saying that these 100% healed policies are not going to be upheld. And actually I am sorry I got that backwards, it is the Street case that said that. My apologies. The Street case is the one that said that having returned to work without restrictions was a per se violation of the ADA. That it was not one that the courts were going to uphold. Whereas the Lee case is the one where the courts said that we are going to uphold a 100% healed policy. And that even though it has been unlawful in other cases, what the Court said in that, in the Lee case is that all they were saying is that you had to be 100% healed and have, be free of restrictions to return to the specific job. Not to the workplace generally. And so they could still accommodate people in the workplace when they returned. But if you returned to the specific job which was somebody who was a communications technician, that was not a job that they could provide accommodations because they needed the person to be in the workplace and, and to do the job that they had done previously. So I think the, the Lee case is the exception. But it is also different because the Court looked at that specific job as opposed to returning to the workplace generally. Let''s move to the next topic which is direct threat. And direct threat is a, a defense that can come up by an employer where they can exclude someone from the job if they show that the person was a significant risk of substantial harm to the health and safety to themselves or to others. And that harm cannot be eliminated by an accommodation or reduced so that it is no longer a significant risk of substantial harm. The general rule under direct threat is that if employers do choose to raise this issue they should be using objective medical evidence. And they should also be conducting what is called an individualized assessment, where they are looking at that particular person as opposed to generally making assumptions based on that person''s label of a particular disability. So you have got four cases here. Two where the, the employee was found to be a direct threat and two where the Court found that that was not the case. The first two, Onken and Davis, are both cases involving people where the Court ultimately found that they were a direct threat. I think the common thing between these, there are a couple common issues. One is that you had people engaged in what is generally considered some dangerous activity. In Onken you had a welder and then in the Davis case you had somebody who is working with heavy equipment and working in silos and unloading grain from railroad cars and trucks. And the other thing that was common in both these cases, one involving some with diabetes and one involving someone with epilepsy, is that there was documented evidence of the person having difficulties in the workplace. In the Onken case you had somebody with diabetes who, at least the evidence said that the employee was unable to control their behavior and became very aggressive and angry in the workplace. And that attempts to accommodate them when they had these hypoglycemic episodes had not been successful. And so there were some real concerns based on previous behavior in the workplace. And similarly you had in the Davis case a person with epilepsy who was unable to control their seizures and had used a variety of medications. And they found that the seizures had been unpredictable and debilitating. And so in both those cases, I think because there was this documented problem in the workplace and, and efforts to accommodate had not been successful, the courts were more willing to find that there was a direct threat situation. The Dvorak case, it was different in that the Court found that the person was not a direct threat, or at least that there was an issue of fact of whether they were a direct threat or not. And this was somebody who had actually taken pain killers to address some neck pain and migraines that they had. And they had ultimately been terminated because the employer had found that the person was dependent on pain killers. And was concerned that somebody dependent on pain killers could be a threat in the workplace. And the Court said you know, we don''t really have any documented evidence because when they returned to the workplace that there was a threat. And that while there, you know there is this potential issue that a person could be unsafe if they are taking medication, there is also this possibility that the person actually could be more safe because they are addressing their disability. And that the medication is actually able to make them perform their job better than before. And because there was evidence going both ways, the Court said that they were not going to find that the person was a direct threat as a matter of law. The Burlington case on Page 10 is another case where again there was no documented problems in the workplace. This is a person who had had an amputation to their leg and was a train conductor. And when they tried to return to work the Court found that or that the, the employer had deemed the person to be a direct threat as a result of the amputation. And here is a case where the employer hired some doctors to testify, but the, there had never been an actual physical examination or observation by these doctors of the plaintiff. And instead, they were relying upon, you know, this general knowledge of the amputation. So you didn''t have that individualized assessment for that particular person, their amputation, and how they were dealing with it. And because of that the, the Court found that they would not find as a matter of law that the plaintiff was a direct threat. Another plug for our Legal Webinar is we actually have one coming up in a couple weeks on December 2nd that we are going to get much more in-depth on employer defenses. And, as I have just explained, there are a number of employer defenses including direct threat. So if this is an issue you would like to hear more in-depth information and analysis as opposed to just a few cases, please join us for that. And again, remember those are free. You can sign up for those webinars at ada-audio.org, and that will be on December 2nd. Another issue that is coming up a lot in the courts is the issue of retaliation. And retaliation, as people are probably aware, is actually under Title V of the ADA. And basically says that if somebody has retaliated for trying to exercise their civil rights and promoting the enforcement of the ADA, if they are treated differently because of that, those efforts, that can be a cause of action under the ADA in and of itself. It raises a lot of interesting issues. One issue is who can bring a retaliation claim. And as you will see at the bottom of Page 10 you don''t have to necessarily prove that you have a disability to bring a retaliation claim. We are all so used to every case where the person first has to prove they have a disability. But because retaliation emerges out of Title V instead of under Title I. And instead of using the words qualified individual with a disability, but instead using terms like person, any person or any individual, most courts have said that a person doesn''t have to prove they have a disability to bring a retaliation claim. And so you have the Barker case which is a good example of that. The plaintiff here was a Special Ed teacher and she didn''t have a disability at all. But she claimed that she had been retaliated against after she had filed a complaint with the Department of Education. She had said that the school district wasn''t complying with their legal requirement to serve people with disabilities. And after she had filed that, she had had an adverse action taken against her. And the school district, and so she then brought a retaliation claim based on the fact that they, the adverse action that happened after she had filed with the Department of Ed. And the, the school argued that she couldn''t bring a retaliation claim because she wasn''t a person with a disability. And ultimately the Ninth Circuit said that because the retaliation provisions of the ADA don''t require you, don''t say the word qualified individual with a disability, you don''t have to do that. So anybody who is exercising ADA rights can bring a retaliation claim, even if they can''t bring an underlying claim for discrimination under the ADA. Another issue that comes up in retaliation is whether there is a non-retaliatory cause for the adverse action. So if there is a reason why the person was terminated that is not related to retaliation that could be a basis for the employer winning in that case. And so you have the Rios case which we previously talked about in the context of attendance. And this person had, after some poor attendance, had been disciplined and suspended. And then they had filed a complaint with the City Commission on Human Rights. And then the employer terminated them. So when they filed their ADA case they included a retaliation claim, saying they retaliated. They were retaliated against for filing that complaint with the City Commission on Human Rights. And ultimately the, the Court said no. There is a non-retaliatory reason why you were fired, and it is because of your absenteeism. And that they had well. That was well-documented and responded by the, by the employer. And because they had been able to show a non-retaliatory cause, the plaintiff was not able to be successful on a claim for retaliation. Another issue that comes up is, is whether or not the activity that the employee engaged in is considered protected and a basis for retaliation. Retaliation claims only work if the plaintiff can show that they were engaged in these kinds of protected activities. And so a lot of litigation has been on what is a protected activity. The Pfeffer case is a good example of how, and I think most courts are pretty clear on this, is that if you made an accommodation request and then an adverse action happens against you in the workplace, that accommodation request is generally viewed as a protected activity. But the Casna case I think is one that goes a little further that we haven''t seen as much. And this was an interesting case involving somebody who was hard of hearing and the employer complained that the person wasn''t, hadn''t done some paperwork in the workplace. The employee who was hard of hearing said well, they hadn''t heard about the due date. And then the employer made an offhanded comment, you know, well, how do you think you can do the job if you can''t hear? And so the employee informally complained about the comment saying, you know, aren''t you being discriminatory? So they didn''t file a charge with the EEOC. They didn''t file a formal complaint. They made a comment in the workplace saying, aren''t you being discriminatory? And then a few days later the employee was fired. And when they filed suit they, they brought a claim not only for termination but also for retaliation, saying they were retaliated against for making that comment in the workplace. And the Seventh Circuit in a case that arose in Illinois, the Casna case, found that statement in and of itself was a protected activity that would allow the retaliation claim to proceed. So that demonstrates that you don''t have to make the formal complaint necessarily to pursue a retaliation claim. The Isler case is a case that goes the other way, finding that the plaintiff had not engaged in a protected activity. This was basically somebody who was a bus driver who was complaining to the school district officials saying what the practices that they were doing were not good for students with disabilities. And later his contract wasn''t renewed five months later. And the Court said that, you know, that really isn''t protected activity when you are just talking about operations within the workplace. Even though the plaintiff had argued that what he was doing was advocating for students, the Court didn''t see it that way. And then the last issue for retaliation is whether or not there is a causal connection between the exercise of the protected activity that we talked about, and ultimately the action taken by the employer that is adverse to an employee. You have to show there is a causal connection that is a link. And usually what courts are going to sit, that will look for this link is if it is close in time. Or they use a term called temporal proximity. And the closer in time it is between the action by the employee, the protected activity, and the adverse action by the employer, the more likely it is going to be deemed to be retaliation. And so you have a couple of cases here that look at that issue. One is the Freeman case, and that is somebody who was terminated after they had seen, they had sought Equal Employment Opportunity counseling and filed an EEO complaint. And the employer had said you know, there really isn''t a causal connection because we had actually planned to take adverse action against this person before they filed their EEO complaint. They didn''t terminate him until after. Terminate her until after the EEO complaint, but they had made some plans the month before. And the Court said you know, the fact that you were making plans to possibly terminate them and contemplating that really isn''t enough to show that you had, you know, that you had not, you were planning to do it as a matter of certainty. And the fact that you actually terminated them after they filed the complaint shows that causal connection. And whether or not you were contemplating it and had documentation you were contemplating it the month before wasn''t necessarily going to be determinative. And then you have the Barkeley case out of Michigan right below there on Page 12 where they found that there was not a causal connection. Here there was six months between the action by the employee and the adverse action. And they also said that there just was no real evidence to show this causal link. And that plaintiffs have a responsibility to show some sort of causal link between the adverse action and the protected activity which here was filing a complaint with the EEOC. So I am actually going to change it up a little bit. And rather than go into this last topic, why don''t we stop here since we have been about 45 minutes and open it up to see if there is any questions on these first five topics. And then after we have had checked to see if there is any questions, we''ll return to reasonable accommodation and then the other issues under Titles II and III. So if the Operator could help people understand how to ask questions, we tall take it from there.
Ladies and gentlemen, if you have a question at this time please press the star key and then the one key on your touchtone telephone. If your question has been answered, or you wish to remove yourself from the queue, please press the pound key. Again, if you have a question, please press star one. Question comes from Caller.
Yes. Okay, I have a question regarding this contemplation of termination. The purpose of the ADA actually is not to [inaudible] to be used with some employees; I am not meaning to say it in a negative way, but sometimes when there is like a termination process started and employees are going to come and say, I haven''t applied for ADA yet and therefore you are firing me because I am filing actually an EEOC protected activity. I wanted to know whether or not when there is already an announcement that there is going to be disciplinary action taken for long term absence due to medical reasons if the employee filing for ADA and then getting terminated, even though he was denied ADA, would be considered as a retaliation case.
Robin, I am having a hard time hearing the question. I don''t know if you could hear it better than I could.
It is related to a retaliation question. I believe it is that an individual who did not apply for, and the individual can correct me if I am wrong; who did not apply for or did not identify that they, you know, this person used the terminology apply for ADA, but did not identify that they had a need for reasonable accommodation but ended up needing to take time off or applying for time off and then at that point identified and wasn''t sure of potential repercussions from the employer because they had not previously identified as disabled and the person was asking about it being a potential retaliation case. Is that correct; did I summarize that correctly?
No, what I meant to say was basically, like, let''s put it this way; we have like, a procedure in place to terminate employees that have been out on long term absence and the actually the person, didn''t apply for ADA all the way down until they are notified that there is going to be a disciplinary action against them because they are not at work. And then, it would end up being like retaliation because, you know, when they apply for that and when that is denied and then they get terminated, they could argue that it is a retaliation case.
Okay. Did you understand that, Barry?
Yeah, yeah thanks. Yeah, I think there is a couple of issues here. I think the broader issue focus on what you are doing is on leave as a reasonable accommodation and we are actually going to get to that in a few minutes after we take a few questions. But, with respect to retaliation, I mean, retaliation is again, you would have to show that the action is being taken because you are exercising some kind of right. And so, I think what you are saying is that the employee is saying; okay, I kind of hear the fact that I am anticipating that I might get terminated and so I am going to raise the ADA and when you say, you know, apply for ADA, I am assuming you mean something like either ask for an accommodation or actually file a charge with the EEOC. And, you know, once somebody does that protective activity and there is an adverse action after that, you know, there is a potential of raising a retaliation claim. But, it may not; again, if the employer has been documenting, like the attendance or is documenting the inability to perform the essential functions of the job and can show that the person isn''t qualified to do the job, that may end up, you know, knocking out the underlying claim which would be the termination or refusal to allow the person to work. And then, the retaliation again, you would have to show that causal connection between the action that the employee has taken, whether it be asking for the accommodation or not. But, I mean, I think when somebody takes leave and that is granted, that is really, that is the protected activity; that is when they have asked for the accommodation, even if they haven''t necessarily used that terminology. If the employer is allowing them to be off as a result of some sort of condition, I think that generally courts are going to see that as a reasonable accommodation request.
Okay, next question, please.
The next question comes from Caller.
My question has to do with the initial part of our discussion today, and I am wondering about double jeopardy. Let''s say an employee has been doing some kind of function and perhaps it was already initially litigated and it was determined that the employee did not have a disability at the time, so the case is thrown out. Now the employee is still doing the function and with the new Amendments, it has been clarified that maybe there really is a disability. So, the employee brings action again. Can that employee bring action on the same thing now that the Amendments have passed; is that any kind of a double jeopardy issue?
Well, I don''t think there is really any double jeopardy. I mean, I think what we are seeing is that, like some people may have an accommodation that they have requested and that has been denied because they have been deemed not to have a disability and therefore not entitled to a reasonable accommodation. But, under the ADA Amendments Act and the interpretation of the definition of disability, it may be easier for them to prove that they have a disability. I think what the employee would have to do in that situation is request again the accommodation and have the employer go through that interactive process using the new determination. I don''t think they could just say; well, you denied it before, you know, therefore you are violating the ADA. They would have to start that process all over again because the employer, you know, when they engaged in the interactive process or denied the accommodation before, was doing so under the view of what the courts had viewed what was a disability under the ADA. So, I think if there are situations where there have been past denials or past decisions, that employees should ask again, whether it be an accommodation or otherwise, and then the employers would have go through that analysis under the ADA Amendments Act.
Thank you.
It is basically an issue of new rules, so you would revisit that issue under those new rules, right?
Right. I mean, right now we have, I think the ADA Amendments Act is in place, and so I think employers are subject to the ADA Amendments Act. I think the EEOC''s rules are going to further clarify the ADA, but we don''t have to wait until those rules are approved. I mean, they are in the process right now and I think ideally the EEOC would have liked to have had those rules done by the effective date, and they are issuing now after the effective date, but I think despite the fact that the EEOC is within that process right now, employers are, you now, are responsible for making these decisions under the ADA Amendments Act, as the Supreme Court or as Congress has set it out.
Okay, next question, please.
The next question comes from Caller.
I have a question about the temporal proximity situation. On the Casna case, he made the comment and then three days later he is discharged. On the Barkeley case, there was a six month time frame. Is there an acceptable time frame that the courts have said such enough time passes; say they do say six months from the alleged discriminatory act. The six months passes and the courts say six months is plenty of time to; it is that time frame for that temporal proximity to be allowed. What is to keep an employer from thinking; okay, I will put up with this for six months. The seventh month, here you go. Is there a court mandate that basically indicates what kind of a swing in time you have there?
There really isn''t any kind of number that I can say this is temporal proximity and this isn''t, I mean, it really is a case by case basis. You know, I think there has been cases where it has been a couple of months, where they are still deemed to be temporal proximity. And again, you are looking at the connection between the employee''s action and the employer''s action. But, I wouldn''t say that if it is less than three months it is automatically going to be temporal proximity and if it is, you know, more, then it is not. And, you know, I mean I guess it is possible that an employer would say; okay, I am going to wait to avoid a retaliation claim. But, I think that is, you know, intellectually that is possible but I think in practice I don''t think that''s how, you know, the workplace happens. I don''t think people are going to avoid making a decision because of their; you know, they have got retaliation claims in their mind. I just don''t think that''s how decisions are typically made. But again, it really is a case by case basis and then it is also looking at precedent within, you know, particular Circuits. I mean, that is what is so challenging; it is a federal law, but different courts interpret the ADA differently across the country and you will see cases that often times have very similar facts and courts will go one way and the other. I mean, the two cases I have presented to you today are pretty stark in their differences; three days versus six months. But, you are going to have cases that fall in between those where they are going to go, you know, both ways depending on the court and how they are looking at those particular facts.
What about cases where they cross sue each other? Such as, say someone with a power chair wants to live at a place; gets in there, it is not really disability accessible. Landlord won''t fix it; they sue. They win. Landlord gets upset; he sues. You know, where they cross sue each other for various reasons; is that retaliatory?
Well, that is not the retaliation we are talking about here. What we are talking about is where somebody had an adverse action because of they have exercised their ADA rights as opposed to the scenario that you have set out.
Okay, thank you.
Thank you. Next question, please.
The next question comes from Caller.
Go ahead.
Yes, can you help me to understand what the definition is of what you call a genuine issue of fact?
Yeah, there is a concept in the law called summary judgment. And summary judgment means that a defendant, an employer, does not have to go to trial if they can show that there are no issues of fact that are really in dispute and then a material issue of fact, one that is very, you know, central to the case. And, if an employer can show that there is no issue of material fact, that really is only more of a legal interpretation of the particular legal issue, that the court can decide that without letting it go to a jury. Under the ADA, you are entitled to go to a jury or to go to a trial if you request one. And, if you can, if defendants can show that there really are only questions of law before the court, then they can have what is called summary judgment. What happens in many of these cases is that the plaintiff is able to show there is a material issue of fact; there is something that is really central. It is not a legal issue; it is more of a dispute between the two parties that is material to the issue, and then they are allowed to go to trial on the overall case. A lot of times after a court says that there is not going to be summary judgment, that there is this material issue of fact, that is when these cases settle. But, I think in many cases, employers will first see if they can get summary judgment and get the case kicked out without going to trial and make the argument that really, this is a legal issue the court can decide without needing to go to a trial.
Okay, so you are saying.
But, the ADA doesn''t; because this concept of summary judgment really is sort of in all legal cases, there is nothing in ADA regulations or anything like that that define material issue of fact. It is really something that is more of a broader concept in litigation; it is not ADA specific.
Right, no; but, so you are saying it would be a dispute between two parties that is material to the?
Right. Like, a good example is the case we talked about involving the person who was on painkillers and the employer was saying somebody who overly uses painkillers could be dangerous in the workplace, and the employee was saying no, that actually the painkillers are helping me be more productive in the workplace. And, you have, maybe expert witnesses on both sides.
Okay.
Who have evaluated the person and say; he is going to be a danger, he is not going to be a danger. Well, when you have credible evidence presented by each side, that is a material issue of fact and therefore it needs to go to a trial as opposed to being decided by a judge.
Thank you.
Sure.
Great, next question, please.
At this time I am showing no further questions. Once again, if you have a question, please press star, one.
Barry, why don''t we have you go ahead and proceed.
Great, thanks, Robin. So, now we are on the bottom of page 12; reasonable accommodation. So, we have one more Title I issue and then we will shift over to Titles II and III. And, within reasonable accommodation; there is a lot of litigation on reasonable accommodation, so we could spend the whole session on that, but what we want to do is focus on sort of four issues where there has been litigation in the last year that is raising some, maybe some new issues or some different interpretations that we haven''t seen. So, one of the main issues we see in reasonable accommodation litigation is the issue of interactive process, and I am sure most of you are aware that once an employee asks for a reasonable accommodation, the employer is, should engage in what is called the interactive process with the person with the disability so that they are going back and forth and trying to determine whether or not the person can get accommodated; whether that particular request they have made is reasonable, whether or not there is another thing that the employer can do that would be effective to accommodate them. And so, the general rule is that if employers fail to engage in the interactive process, it is deemed discriminatory. And, in all of these cases that employees have lost over the years under the original ADA, the cases that employees have most often won is when the employer has not engaged in the interactive process. The McBride case is one where ostensibly the employer didn''t engage in the interactive process, but the court still found that they were not liable under the ADA. This was somebody who had returned from medical leave because of respiratory problems and they had asked for the accommodation of not being exposed to fumes in the manufacturing facility. And, the employer said; look, I will give you a respirator. The employee said; that is not enough, I want to not be exposed to fumes. And basically, the employer didn''t engage in interactive process to figure out whether that was something that could be worked out or not. But, ultimately the Seventh Circuit said that that failure to engage in the interactive process really wasn''t material because there was no showing that really any reasonable accommodation was possible. So, the employee had thrown something out but hadn''t given a lot of specifics. And so, because there wasn''t anything that was shown to be possible that they could have gotten to if they had engaged in that interactive process, the employer was not held to be liable. The EEOC versus Chevron case is much more the typical case where the employer has not engaged in the reasonable, the interactive process once the accommodation request has been made and then found that they have to go to trial because it is not something that can be decided on summary judgment. So, this was a plaintiff who was looking for the accommodation of moving their office closer to home because of the chronic fatigue syndrome that they had and the employer did not explore whether there were vacant positions that existed at a different location. And, because they made no effort to consider the request as accommodation, they were found not to engage in the interactive process and therefore, the case proceeded. Leave is another area of reasonable accommodation that we see a lot of litigation on. We talked about this a little bit already, but generally, I think the general rule is that courts are resistant to cases where the employees are seeking indefinite leave. When employees can identify a specific time that they would be returning, I think the courts have been much more receptive to that as an accommodation. But, when employees basically are telling employers; I don''t know when I am going to come back, but I need to have an accommodation to be off and, you know, and have that as an accommodation. Courts have been much more deferential to employers who say, you know, that is not something I can handle in the workplace when somebody''s not clear on when they are coming back. So, the Bernard case is a case where they, the court found that the employer is not required to provide an unlimited absentee policy when they could not provide a time at which the plaintiff would return to work. The Clinkscales case is actually sort of the exception to the rule and this is one where they couldn''t provide a certain date, but the court found that it didn''t necessarily mean that they couldn''t pursue their ADA claim. And, what they relied upon, which I thought was interesting, was the plaintiff said; I can''t tell you exactly when I am going to come back but I am going to try to get back as soon as I can, as soon as I am medically able to do so. And, the court said that is not indefinite leave; that is an intention to return and the employer needs to work with that person. So, I show you that case in that there are some cases where people don''t provide specific dates and courts still say that they are entitled to pursue their ADA claims, but that is not the typical result you are going to see in these kinds of cases. Another common issue that came up is about the issue of whether or not the employers are required to accommodate disabilities that they don''t know about and again, the general rule is that employers are not required to accommodate anything if they don''t know it is a disability or don''t know its accommodate known disabilities. And so, the first one, the Thompson case, is a case where the person said that she couldn''t be subjected to stress or a hostile work environment, but didn''t really disclose the fact that she had a disabling condition of mental illness. And, the court said the employer, if you are going to require them to provide an accommodation, they have to be aware that it is a disability, and the plaintiff had not given that information. The Moore case is one where the person did not provide a written accommodation, but the employer was aware that the employee had engaged, had experienced injuries as a result of an automobile accident and wasn''t able to return to work right away. Basically the Wal-Mart was saying that they didn''t know that the person had a disability and that they were requesting; when they requested the leave and they pointed out the fact that the plaintiff had not put their accommodation in writing. And, the court said; you know, really you don''t have to do that. The defendant knew about the work restrictions; they knew about the accident. And, as long as the defendant has what is called actual or constructive knowledge of the person''s impairment and their disability, that is enough, and that the oral request of light duty and reduced hours further demonstrated that the employer knew that the person had a disability and was asking for an accommodation. And then the last issue under reasonable accommodation I want to mention is reassignment. People might remember there was a case that actually the Supreme Court was going to look at; the Huber case at the bottom of Page 14. And, this was the whole issue of what is reassignment. You might remember that reassignment is an accommodation that the EEOC has identified as a possible accommodation when you can''t accommodate somebody in their current position. But, the issue is whether or not you have to allow that person to move into a different job that is vacant and that they are qualified to do, or if you only have to give them the opportunity to apply for the position. And, the Seventh and Eighth Circuits say you only have to give the person the opportunity to apply. Other courts have said; no, that is not enough. You have to put them in that position as long as it is open and you are not bumping somebody out and they are qualified to do that. And, we thought the Supreme Court was going to resolve this conflict, but while that case was pending before the Supreme Court, the case was settled and so the Supreme Court hasn''t taken that. But, I wanted to point that out as a case that may come up again or an issue that may come up again, that the Supreme Court expressed an interest in, in the past. And then, you have got three more examples of reassignment cases. The first one, the Tobin case, where they found that they had failed to accommodate somebody through reassignment; this was somebody who had worked for 37 years for a particular company and then got terminated when they asked for a reassignment. And, the court said, you know, there was no reason, no excuse given by the employer why they denied him the reassignment to the job. He was qualified; he wasn''t going to bump anybody out, and therefore, reassignment should have been provided, whereas in the Woodruff and the McBride cases, in both of those cases, reassignment was not found to be something that the employer had to do. The Woodruff case was somebody who was for that reassignment to a different position which actually would have resulted in a promotion, and the court said you don''t have to promote somebody under the ADA as a reassignment, reasonable accommodation. And the McBride case was, this was the one where the person; we talked about this case before, where the person wanted to come back to work and not be exposed to fumes. And, the court said; you know, it is the plaintiff''s burden to find an open position that they are qualified to perform, and this is an issue that the courts are really split on. Whose job is it to identify the position if the plaintiff or the employee asks for a reassignment? Some courts have said really it is the employer''s job because, you know, they know their own workplace; they know what other jobs might be out there. But other courts, like the McBride case in the Second Circuit, have said because the employee is seeking the accommodation, because they are seeking reassignment, they have a responsibility to identify an open position that they are qualified for. And so, in that case, they weren''t entitled to an accommodation. So now, let''s shift to some Title II, Title III issues. There has been a lot of developments this year, probably more than in previous years, under community integration. People are aware that under Title II, the Department of Justice has issued a regulation saying that people with disabilities should be served in the most integrated setting appropriate to their needs. And that when Congress passed the ADA originally, found that isolation and segregation of people with disabilities is a form of discrimination. People are also probably familiar with the Olmstead case that found that unjustified institutionalization is discrimination under the ADA. And, there have been a variety of cases that have been decided since then, but I think probably one of the most important cases that has been decided since the Olmstead decision is one that was decided just a couple of months ago, and that was in New York; the Disability Advocate versus Paterson case at the bottom of page 16. This is a really important case for a number of reasons, in that it involved people who are living in private facilities. A lot of the Olmstead litigation we have seen over the years are people who are in state operated facilities, but this is one where people were living in privately owned facilities. There was certainly state funding and there was state oversight, but they were private facilities. And, the court here found that the folks in these facilities were eligible for community integration, even though they were private facilities as opposed to state facilities. The other issue that had come up in this case is the fact that these were not, sort of off on campuses, but were actually integrated, so to speak. These facilities were in neighborhoods but, and so they were arguing that those weren''t necessarily the kinds of institutions that the Supreme Court was looking at. But, the court went through a lot of analysis about the fact that even though these were located in neighborhoods, they were still institutions. They were large, over 100 people in them, all with the same disabilities; inflexible routines, limited personal time, I mean, those kinds of things. So, the state had argued that; well, the fact that there is facilities that are more segregated should mean that these aren''t necessarily institutions, and the court said no; the fact that you have less integrated settings, you know, campus-like facilities in your state, doesn''t mean ones that are still institutional but are in neighborhoods can''t be considered institutions for purposes of the ADA and Olmstead. You will see four factors there that they also looked at as far as whether or not a state has what is called a comprehensive effectively working plan, as laid out in the Olmstead decision. So, a really important case; it is a really long case though. If you decide to read it, you might want to read it online before you print it out. I think it is over 100 pages, but I think it really lays out a lot of really interesting issues, post-Olmstead, that will be very helpful going forward. The other two cases that are listed here are interesting because they are a different type of Olmstead case in that they are arising out of state budget cuts. And, I won''t go into the details of all of these, both of these cases, but generally the argument is, is that both of these cases arose because they were people who were living in the community, receiving home health care services, and the state decided to either cut those services or reduce those services. And, as a result of those cuts and reductions, people were being forced into institutions. And so, litigation was brought to prevent these budget cuts, which would have prevented the cutting of these services that people were using to live in the community. And in both of these cases courts found, and the V.L. versus Wagner case was just decided a couple of weeks ago, so very recent; courts found that these cuts should stop while the cases proceed. Injunctions were issued in both of these cases. And, because there is budget cuts happening all across the country these days because of, you know, fiscal situations, we may be seeing more of these. But so far, cases that have been brought this way, where you can show that the cuts would result in people being unnecessarily institutionalized, have been successful. Then if you turn to Page 18, another sort of emerging issue that is come up in Title II is this issue of statute of limitations under Title II claims. Generally, if you look at Title II, there is no specific statute of limitations that says you have to file within a particular period of time in federal court. Instead what they say is look at the most analogous state law claim and usually you look at the statute of limitations for personal injury claims, which depending on the state, could be two years; it could be three years, it could be one year. But, you use that as your framework. But, there has been some cases that have talked about; well, when does that statute of limitations start to run? The Frame case really I think is one that is initiated a lot of discussion. It was a case involving people who had sued the City of Arlington for violating the Title II of the ADA, for failure to make a variety of things; curbs, sidewalks, parking lots accessible. And, the issue was whether, when did the statue of limitations start to run? The city said it started to run at the time they made the changes, when they, you know, built the parking lot or when they put the sidewalks in. And, the plaintiffs were saying, no; it should, really the statute of limitations should start to run when we encountered the barriers; when we encountered the inaccessible sidewalks or the inaccessible parking lots, and that is when it should start to run. And, the plaintiff said that if it started to run at the time that the parking lots and the sidewalks were put together by the city, the plaintiff''s claim would be too late. But, if you counted it when they encountered the barrier, it would have been within the two year statute of limitations for Texas. The plaintiffs also argued that while even if you say that; we would also argue that there is no statute of limitations issued because it is a continuing violation, meaning that if you can show that the barriers continue, you wouldn''t necessarily have a statute of limitations. And ultimately, the Ninth; excuse me, the Fifth Circuit said; we are going to find for the city here and find that the statute of limitations has already run, and find that it should begin to run when the person, the actual conduct by the defendant has taken place, otherwise municipalities would be subject to unlimited and continuing liability. And, to provide certainty to the municipalities, they need to know. And so, this was one that I think a lot of people were surprised at and that actually the case had a very strong dissent and there are petitions for rehearing to get the Fifth Circuit to change their position, but currently the Fifth Circuit has taken the position that the time when the sidewalks and parking lots were done by the city is the time when the statute of limitations should run and it is not a continuing violation and that you don''t look at the time when the person encountered the barrier, but when the actual work was done by the city. And then, you have a couple of other cases that are listed here that actually try to differentiate those cases; the Eames case, which is actually within the Fifth Circuit in Louisiana and the California case on the next page. And both of those say that, you know, we are different from Frame because it should be a continuing violation. It is program accessibility; it is not these services by a city, but it is actually program accessibility. The Eames case involves access to university facilities, saying the architectural barriers there should be based on when the person encounters the barrier, not when the architectural stadiums and such were built. And the Californians for Disability Rights case is again distinguish Frame but has pretty similar facts. They said that the difference between them and Frame is that you were talking about an ongoing policy or practice of discrimination and not sort of these unrelated acts of building sidewalks and building parking lots, but really an overall more common system of just building sidewalks. But you had, but you basically have a one side walk accessibility case which says that; you based the statue of limitations at the time when the person encounters the barrier and another one when it says when the sidewalks were built. So definitely some conflict here we should be watching for more litigation. And then the last issue on Page 19 is the issue of standing to sue under Titles II and III. Standing just means that you have the ability to bring a case. The constitutional says you can only bring cases when you have litigation, when you have a case or controversy in an injuring in fact. And you will see the four factors on Page 19, which list what you have to show to have an injury in fact. And so what happens in these cases is because Title III does not have damages required, you can''t recover damages under Title III, you are only entitled to injunctive relief. You have to be able to show, to show that you have an injury in fact. That the relief you are getting, the injunction relief will readdress the injury that you have, you have experienced. The fact that you can''t get into a particular building or access a particular public accommodation. And so the Supreme Court has said in order to get relief in these sorts of cases where there is not monetary relief you have to show it is likely to happen in the future. You are likely to encounter this barrier in the future. You are likely to return and try to access this place in the future. If you can''t show that, you not necessarily going to be able to bring a case under Title II or Title III. And so you have some cases here that give examples of when plaintiffs were found would not be able to bring a Title III case and cases where they were able to bring a Title III case. The reason I put the Kramer case here is that this was somebody who as opposed to being a typical customer was what is called a tester, where the person was basically what they did was go out and test the accessibility of certain businesses and the court that a tester is really not, the kind of person that Title III was looking to support in that they weren''t talking about individualized relief, individualized injury but instead of sort of a more manufactured injury. This doesn''t mean that people can''t bring cases that there are testers others courts have recognize that they could. But at least in this Ohio case they found that that was not somebody who was entitled to Title III relief, because they couldn''t show injury in fact. But then I wanted to move to cases for the people were able to find standing and two cases that I think are important and then we will open up for questions. One is this Burger King case where the person had only been made allegations of barriers that 2 of the 90 Burger Kings that they said were inaccessible and the, the defendant had said that you know they have to go to all the different Burger Kings in order to bring cases against the Burger Kings. And they should only be limited to the 2 that they had actually been to. And the court said no because they were common design characteristics and common discriminatory practices in all these Burger Kings. The plaintiff was able to bring suite, it was somebody who was bring a suite under class action. And then the Benavides case, I just want to mention because it is a case involving somebody with who is deaf, needed an interpreter health care provider. And there are a lot of health care provider''s cases out there. And the court looked at a number of factors but basically they found that the it was likely hood, likely that this person was going to experience problems in the future in addition to being deaf they had heart disease as well as diabetes. So it was likely that they would need to go back to this particular hospital. It was located near their house it is likely that they are going to have medical problems in the future. And it was clear that the hospital had changed their policy of not providing interpreters and so therefore they were able to bring their Title III case. So we will stop there and open up and see if we have any questions in the remaining time.
Once again ladies and gentlemen if you have a question please press star one. There is a question from Caller.
Hello. I have a question, when I was hearing you talked about Benavides versus Laredo Medical Center thing about the deafs. We are having some questions in our One-Stop in Columbus, about providing the gold standard for all customers that come in. And one of the things that keep going round and round about is how much money needs to be dedicated for an interpreter. And I keep explaining to the folks that be, that we don''t know how much money it is going to take to provide reasonable accommodation with an interpreter. Because we don''t know how many people will be coming in that need to have an interpreter and for how many sessions they will need this interpretation service. I am wondering if you can help me out because I have provided the expertise from the people in town. And I actually don''t know what else to say except that we need to provide this because we accept the funds so we need to provide to have this reasonable accommodation. Can you possibly help me out with how to address this issue? I want to be respectful of management as well as the customers that are coming into our facility for assistants or training and with getting a job.
Yeah well I think the position that your taking is absolutely the correct one. A lot of times when an interpreter issues what the people will do with their analysis is to look at the cost of the interpreter for the particular service and say maybe like a lawyer who says that the not all the money that I am going to spend for the interpreter is going to eat up all my legal fees. And that is really not the analysis you don''t look at sort of the one transaction and the interpreter cost. You look at the overall cost involved that that the business would have or that the government agencies would have, as opposed to the specific service you providing for that specific person at that time. You know there is an undue burden defense that that people can raise, but I mean you are talking about a situation where you are receiving federal funds as well as so there is Rehab Act claims as well as under the ADA. And I think generally that you are right you can''t necessarily predict. Mean, I think the best prediction would be to be looking at past years and requests that have been received and try to budget those accordingly and doing so, but you can''t sort of say we are not going to do it because we can''t predict it, that is just not a valid excuse.
Unfortunately we can''t really go back in past years because we really didn''t have many people coming in requesting assistant because I guess they knew that we didn''t have the type of assistance that they needed. (inaudible)
Yeah maybe there is, maybe there is other agencies that do similar work in other jurisdictions that you could use as sort of a gauge on how much they spent over the years, ones that were actually providing interpreters.
I also think, this is Robin. I would also think that just so you would any programs or anything you have to make a decision that, you know less, you know we don''t have hard numbers, so maybe we over estimate our first year to get a better handle on you know, one, make sure we have you know a reasonable amount of funds set aside. Knowing that you know it is not an exhaustive pool that if we do get more request than that we are going to have to look at our budgets and things of that nature, as we would any expense look at our budget if we are going to potentially go over the budget or anything of that nature. But let''s say if I am offering ten programs and I would anticipate you know that I would potentially have minimally one person participating with who is deaf or hard of hearing and needing to go with those type of accommodations in those programs. How much would it cost me to provide those services? And that is a starting point in that. And then would say okay you know this is what it would be for one person to be participating if we have one person, not the same person, but one person participating each one of our services that is the base line of just one person. Do we budget above that you know what are our expected expense look like to do that? We don''t know if we are going to use all these funds but we should at least starting have a starting point. And it starts you with like anything you know, when you move into a new building you don''t exactly know that your light cost are going to be either because you haven''t run the electricity for all your programs. But you making some guesstimates and estimates on that, typically then starting as you look forward to moving to years beyond, you look at what your previous years your expenses and stuff were for that budget. And I think it is for the same approach you would use for anything is to, what if we did have someone participating? Let''s say we are going to have somebody participating proactively what would it cost us and that is where we should be starting our budget numbers and then deciding from there if (inaudible) would be.
Okay that is kind of what I suggested but still I still got the same question back again. What is a reasonable accommodation and what would that amount be? And I have no clue because like anybody else I don''t know how many people will come in. I do know that one deaf person that I have been working with does not read lips well and I have kind of gotten to where I understand his short hand. But he is very labor intensive when you are working with him, in that he has to literally write out a script and you write it out for him if he is going on a job interview and does that, no one will hire him if he is doing that. He can''t even get his foot in the door. He needs some training in computer basics, on interviewing, and some other things. And I don''t know how much that would end up being. But I do know that possibly could go on longer than we would guess. But if he needs the assistance, he needs the assistance. Is there anything in writing that I can provide people that I work with that might give them more of a feeling of getting to where we need to be as far as budgetary matters because I know we want to do the right thing, that is clear to me. But it is just frustrating because I can''t pull a figure out of my hat and I don''t know how many people will come in and.
But yeah, unfortunately on we were not able to really talk about that kind of thing in-depth in this audio conference. But I would really strongly encourage you to contact our office we would be more than happy to have a conversation with you. Unfortunately saying written is really reasonable accommodation is a concept. And so that is the thing you are dealing with, you are not dealing with percentages and you are not dealing with anything that is hard and fast for anyone. There are guidances to determine how one determines whether or not something becomes reasonable accommodations or unreasonable accommodations. And we could talk to you about that and show you what some of the documentation might be that you can look at that. But unfortunately we will have to keep moving on. We are at the end of our hour, I have us at the bottom of the hour unfortunately and so we need to kind of wrap up. Barry, I want to thank you very much for your time and your efforts today. I hope everyone appreciates the documentation that you have provided them in regards to some of the detail of these cases that you have been discussing today. And as always, all of the information is very valuable and timely to us. I do want to invite everyone to join us in our December session of the ADA Audio Conference Series. That is being held on December 15th, same time, same place, and the topic for that session is Social Networking Site and Accessibility: Implication for Employers, where we will be joined by staff from the Job Accommodations Network who will be talking about some of the pros and cons of using social networking site for recruitment in other employment sites but yet some of the things employers need to be concerned about when it looks to the accessibility of those programs and some of the concerns that they need to pay attention to as we all jump on the bandwagon of Twittering, Facebooking, MySpaceing, and whatever other cool acronyms might be out there for these kinds of things. So I do invite you to join us for that particular session. Again this program is brought to you by the National Network of ADA Centers. We encourage you to follow up and contact your regional ADA center if you have questions following this program or any questions on the Americans with Disabilities Acts, our phone number is 800-949-4232 both voice and TTY. If you don''t know the center that serves your geographic area, you can also go on to our centralized website at www.adata.org and you can find the center that serves your area and link to their website directly. Again this program was recorded and a transcript as well as the recording will be made available on the website www.ada-audio.org within the next ten business days. We hope you are going to join us again in the future and I hope that everyone has a great rest of their week. Thank you very much Barry. And thank you all for participating.
Ladies and gentlemen that does conclude the conference for today. Again thank you for your participation you may all disconnect. Have a good day.