Welcome to the ADA Legal Webinar Series. My name is Peter Berg, Project Coordinator of Technical Assistance and Training with the Great Lakes ADA Center. The ADA Legal Webinar Series is a program of the DBTAC-Great Lakes ADA Center on behalf of the ADA National Network. The ADA National Network is the leader in providing reliable information, guidance, and training on the Americans with Disabilities Act to businesses, government entities, and individuals. I want to welcome all of you to today''s session where we will be looking at the impact of ADA cases that were not dealt with under the ADA Amendments Act. The ADA Amendments Act of 2008, which went into effect on January 1st, dealt with two significant Supreme Court cases, but there were many other cases out there that were not addressed under the ADA Amendments Act. And our presenters today are going to talk about those other cases and the implications that they have had. With us today, for those of you who are regulars to our ADA Legal Webinar Series, we have Barry Taylor. Barry is the Advocacy Director for Equip for Equality. Equip for Equality is the state of Illinois'' advocacy protection and advocacy service. And he also supervises the legal services self advocacy and training projects at Equip for Equality. Joining Barry today will be Alan Goldstein. Alan is a Senior Attorney with Equip for Equality, and he is also the Manager of the Illinois ADA Project. So with that, I will turn it over to Barry and Alan to take us through today''s session.
Hi, this is Alan talking. Thank you, Peter. Sorry, there have been some technical issues, but I just pulled the slides back up and, hopefully, everyone can hear me and we are working okay. If there are any problems, if you can type in the little box, I should be able to catch that as I am going. Otherwise, I will be assuming that everyone can hear what I am saying. So again, we would like to thank, we have over 80 participants today which is great. And I know there are a lot of people listening who know the ADA very well, so I encourage anyone to ask questions or to correct any misinformation or to point out anything else that you feel is relevant in this session cause we have a lot of people with knowledge in this material joining us today. And also, before we start, I want to thank two young lawyers at Equip for Equality, Rachel Margolis and Dan Spira, who helped Barry and myself in preparing the legal brief, which you will receive, if you have not already, as well as these webinars. So, I want to thank Rachel and Dan. We have here a picture of the current U.S. Supreme Court. And just a couple of observations before we get started, I like this picture for a number of reasons. The main reason is I just love how happy Justice Sotomayor looks in the upper in the back rail on the right corner, the newest Supreme Court justice member. Also I find it interesting that many of the justices are looking in different directions, which I hope is not indicative of the future direction of the court. And finally, the last thing I found amusing in this picture is Justice Scalia and Justice Thomas in the lower right in the front row are sitting closer together than any of the other justices, which some might say maybe symbolic of their judicial philosophies as they agree on the vast majority of Supreme Court decisions. And, again, we would like to thank the Great Lakes DBTAC for helping us put on these webinars, and we hope people are finding them useful. So, the subjects of this webinar are the Supreme Court decisions that are still good law after passage of the ADA Amendments Act. Many of you may be aware that the ADA Amendments Act explicitly overruled some Supreme Court decisions, notably, the Sutton trilogy and the case of Toyota versus Williams. But there are other Supreme Court cases that are still valid and are still enforceable and have value as precedent. So in this webinar, we are going to look at most of those Supreme Court cases, and we are also going to discuss lower court decisions that apply to those Supreme Court cases. In the legal brief, which will, is accompany these materials, it is a more thorough analysis where all the Supreme Court cases are included in somewhat more depth as well as additional cases of the lower courts applying the Supreme Court precedent. So, here is an overview of the cases we are going to be talking about. The Title I cases will be U.S. Airways versus Barnett, Raytheon versus Hernandez, Chevron versus Echazabal, Cleveland versus Policy Management Systems, and the Board of Trustees of the University of Alabama versus Garrett. Those are the Title I cases. Under Title II we have Olmstead versus L.C. and Tennessee versus Lane. And then under Title III is Bragdon versus Abbott and the PGA Tour, Inc. versus Martin. Some of these cases have been covered maybe tangentially in previous webinars and we try to include information about other webinars that people can go to for more information on various topics. So, now we are going to look at the Title I cases, and we have there an anterior view of the oral argument room for the U.S. Supreme Court, obviously, when court is not in session. So, the first case we are going to talk about is U.S. Airways versus Barnett, which involves the issue of reassignment. In this case, a cargo handler who had back injuries wanted to transfer to a mail room because it would be a less physical position. And U.S. Airways had the policy of only allowing reassignment or transfer to vacant positions based on seniority, and Mr. Barnett did not have adequate seniority to bid for the position. So, the question before the court is would it be an undue hardship for an employer to deviate from their seniority policy. And I just want to point out in this case it was not a collective bargaining agreement policy. It was a policy instituted by management, but I think the case applies to both situations. And the court held that indeed it would be an undue hardship for an employer to violate a seniority policy, as long as that policy is consistently enforced, then an employer does not have to deviate to place an individual in an open position that may have less seniority. However, the court did say that special circumstances might alter this fact. They said seniority policies fulfill the purpose of fulfilling employee expectations of fair uniform treatment, but if these special circumstances that mean those expectations are already in place, then an employee may be able to be reassigned to a position even if they do not have the requisite seniority. And the Supreme Court pointed out what those special circumstances for the exception might be, and I quote, "The employer, having retained the right to change the seniority system unilaterally, exercises that right fairly frequently, reducing employee expectations that the system will be followed to the point where one more departure will not likely make a difference." But the burden is on the plaintiff to show that this, the seniority policy is, in fact, not consistently enforced. If an employer does consistently enforce the seniority policy, then that would trump reassignment. There is also some language in Barnett, and I quote, "That preferences will sometimes prove necessary to achieve the Act''s basic equal opportunity goal," which is an interesting statement. And one more thing I want to point out about Barnett is Justice Scalia and his dissent in referring to the majority opinions discussion of special circumstances that would require a deviation from a seniority policy, in response to that Justice Scalia said, "I don''t know what this means." And now we will look at some subsequent cases and see if we can set a little bit of light on what that means. In Tobin versus Liberty Mutual Insurance, an employee with bipolar disorder requested additional support staff and also he requested to be assigned to mass marketing accounts to increase business. The accommodation of the mass marketing accounts was not provided and the employee was terminated for poor performances, that he didn''t meet the goals for sales. The employee said, "The reason that I didn''t meet the goals is because I did not receive the reasonable accommodation." Many of the cases we see go are decided on summary judgment, but this case it actually went before a jury, and the jury found for the employee, and the company appealed, and the jury actually awarded $1.3 million dollars in damages including $500,000 dollars for emotional distress. And I think part of that is really to the fact that this was a long-term employee. He, Mr. Tobin, had been with the company for 37 years and the performance issues really only started to come up when a new supervisor came in, which we see in a lot of cases, and I think it really points to the importance of constant employer training so that all supervisors are aware of ADA requirements. The employee said that if he had been given the accommodations, he would have met his quotas, and that would have accommodated him for any limitations caused by his disability without altering the essential functions of the job. The employer, their defense was based on Barnett. They said we only assign mass marketing accounts as perks to the highest performing agents. And they analogized this policy to the neutral seniority system in Barnett. The court wasn''t quite convinced whether it was the same type of issue as Barnett. But they said, even so, the exceptions in Barnett were applicable. The evidence show that the mass marketing accounts were not only awarded as perks to highest performing agents, but sometimes were offered on a case by case discretionary basis not necessarily for sales performance. They were given to new sales representatives or sales representatives who were not producing well in order to help jumpstart their business. And at trial, the managers admitted that they had the discretion to give plaintiff a mass marketing account, but they just chose not to do so. And the court and the jury found that in this case that that was a violation of the ADA and the accommodation of providing those accounts should have been granted. In the next slide is Gamez-Morales versus Pacific Northwest Renal Services. In this case, an employee requested transfer to another workstation as a reasonable accommodation, and the employer denied it saying we have a neutral policy that prohibits transfer of positions within six months of a disciplinary action. And the decision is somewhat sparse as it didn''t really go into depth about what the disciplinary action was or all the reasons behind the requested transfer. But in this case, the Ninth Circuit relied on Barnett and said defendant has a neutral policy, and therefore, absent special circumstances, the transfer would not be reasonable. And in this case, it seemed that the employee really didn''t present any evidence of these special circumstances that would warrant an exception to the general rule prohibiting transfer. So, in this case, the employee lost, and the employer was allowed to follow their neutral policy that according to the evidence was consistently enforced. The next case is Dilley versus Supervalu, which involved a truck driver with a lifting restriction who requested reassignment to a route that did not require any heavy lifting. The employer said that it would violate seniority position. Even though this employee had sufficient seniority to get the position, the employer argued, well, in the future a different employee with more seniority might want that position and they should be able to have that position open for that new or for that more senior employee in the future. The court disagreed with that argument saying that there was really only a potential violation of the seniority system, and in this case, unlike Barnett, this individual had adequate seniority to get the transfer, and the fact that someone later may bump him was not a reason to deny the transfer in the first place. And the court also went on to say that if there is a more senior employee in the future who wants that position, then maybe that employee would be bumped, but in the meantime they should have been reassigned into that position. And in this case, also, that employee had a lot of seniority. There were only a couple of employees the court noted who would have been able to bump him anyway, so it was really more of a potential violation of these seniority policy than an actual violation of the seniority policy. There is one big issue on reassignment which is still undecided. There is a split in the circuits and their question is whether the employee, in order to receive reassignment to a vacant position, which is recognized as a reasonable accommodation, whether that employee needs to be the best qualified person for the job. So, does reassignment mean they automatically get placed in the vacant position as long as they are qualified and it is available or does it mean that the employee just has the right to compete for that vacant position with everyone else who may be competing for it? The EEOC takes the position that the employee does not need to be the best qualified, as long as they are qualified for the position and the position is vacant, then they should be reassigned to that position as a reasonable accommodation. The point being, otherwise, reassignment would be of little value and would not be implemented this Congress intended because anyone can compete for the position. As the courts noted in Barnett, reasonable accommodation sometimes give preferential treatment to people with disabilities, and this would be one of those cases. So some courts do follow the EEOC''s position, the Tenth Circuit and the DC Circuit that the employee automatically gets the position if it is vacant and he is qualified. Other circuits do not, notably the Seventh and the Eight Circuit. And, in fact, the Seventh Circuit in the case of EEOC versus Humiston-Keeling actually said that placing a less qualified employee into a vacant position would be what the court termed affirmative action with a vengeance, which again is contrary to the EEOCs position. So, in this issue, it pretty much depends on where you live and which Circuits law governs reassignment for this issue. There is a query whether the ADA Amendment Act language regarding EEOC guidance will change how reassignment will be examined. The Amendments Act requires courts to give more deference to EEOC guidance than had been given in the past. So, while it is possible that the EEOC guidance will be given more weight because the ADA Amendments Act really is talking mostly about the definition of disability issues, it will be interesting to see whether courts do give more weight to EEOC guidance or whether the courts that do not follow the EEOC''s position continue to not follow their position. And this issue was almost settled. There is a case on the bottom, Huber versus Wal-Mart Stores, which was actually appealed to the Supreme Court, and that involved the Eighth Circuit, which meant the employee only has the right to compete for the position, and the Supreme Court agreed to hear the case, but the case was settled before the Supreme Court decided the case, so it is still an open issue and resulting in a split of circuits. Now, we are going to move on to another case, Raytheon versus Hernandez. In this case, Mr. Hernandez resigned his position in lieu of termination due to drug use. He went through rehabilitation but Raytheon refused to hire him because they said they have a neutral policy of not rehiring people who were terminated for cause. Now, we did a webinar a while back on issues of disparate treatment and disparate impact, excuse me, disparate impact, and that comes up in this case. And the court held that employers applying a non- pretextual neutral to no rehire policy are generally not liable for disparate treatment claims. Cause remember, if a neutral policy has the effect of discrimination, that should be a disparate impact claim. Unfortunately, in this case, Mr. Hernandez and his attorneys did not raise the disparate impact claim at the trial court. And therefore, it was only seen as a disparate treatment claim, and therefore, Mr. Hernandez lost because the company was applying a neutral policy. And under a disparate impact analysis, the result may have been different. It is not clear. But this case is interesting for a few other reasons. One, Justice Thomas in his opinion said that there was no evidence that the decision was based on his status as a person with a disability. In disparate treatment you are mostly looking for the motivation of the employer''s decision. Was it done due to a protective status like disability? And with disparate impact, you are looking at the effect of a neutral claim. So, here using the disparate treatment analysis, cause that was all that was argued at the trial court, Justice Thomas said there was no evidence that the decision was based on his status as a person with the disability. They just knew he was fired for cause, didn''t know what the cause was, and then Raytheon followed the policy of not rehiring people who were terminated or resigned for cause. However, it is interesting if you go to Appellate court decision back when Raytheon was called Hughes Missile System, and I have the case cite down there on the note, the facts were actually slightly different than Justice Thomas said. He pretty much, Justice Thomas pretty much said that the employer had no knowledge of Mr. Hernandez, the reason that he left the company before or his status as a person with a disability, but when reading the record of the Appellate court decision, it turns out that when Mr. Hernandez applied to be rehired, he attached a couple of letters to his application, one of which was from a counselor who stated that he worked with recovering alcoholics and drug users, and that Mr. Hernandez regularly attends Alcoholics Anonymous meetings, maintains his sobriety, and has a strong commitment to his recovery. So, the record actually does indicate that Raytheon did have some knowledge of Mr. Hernandez''s status as a person with the disability despite the ascertain in the majority opinion of the Supreme Court to the contrary. So, sometimes it is very interesting to go back and read the earlier court decisions in these Supreme Court cases and see if there are some factual disparities and how they relate. Next case, applying Hernandez is Bates versus United Parcel Service. In this case, employees who were deaf and hard of hearing were not able to pass the hearing standards opposed by UPS. Department of Transportation has standards for trucks in excess of 10,000 pounds for hearing, and UPS decided to apply those standards for trucks over 10,000 pounds to people who drove trucks that weighed less than 10,000 pounds, so they required all drivers to meet the DOT standard even if the trucks were smaller. And UPS claimed that that was an essential function part of being a safe driver. And the court said, "Well then, we really need to see if the employees can drive safely", and went to the business necessity test. If a rule has the effect of discriminating, the employer can still defend their rule by saying, "Yes, it might have the effect of discriminating, but we have a necessary business reason, business necessity compels us to have this policy." And so in this case, it was sent back to the trial court to determine whether UPS did really have a reason that meets the business necessity test. And one thing interesting in Bates is it cites Raytheon to say that Raytheon stands for the proposition that the business necessity test applies to disparate treatment claims, disparate impact claims as well as reasonable accommodation claims, and that is a correct statement of the law. The business necessity test can be applied to all three types of ADA claims. But actually in Raytheon, the decision doesn''t quite correctly state the law. In Raytheon, it says and I quote, "The Court of Appeals further noted that the company had not raised a business necessity defense", a factor that pertains to disparate impact claims but not disparate treatment claims, and that actually is a misstatement. The business necessity defense can arise for any type of ADA claim, disparate impacts, disparate treatment or failure to accommodate. So, the Appellate court kind of gave the Supreme Court the benefit of the doubt in terms of when the business necessity test should be applied and it really can be applied to any type of ADA claim. We have a note here on the bottom about the prior webinar on disparate treatment, disparate impact, and also regarding qualified issues on a separate webinar. Next we have another Supreme Court case, Chevron versus Echazabal. In this case, Mr. Echazabal, who is an individual with hepatitis C was not hired because Chevron considered him a danger to himself. And Chevron asserted that his liver condition might be exacerbated and might be made worse by exposure to toxins. Now in the ADA statute, direct threat was all enlisted to including danger to others. But when the EEOC wrote the regulation for Title I, they included danger to self. So, a direct threat could be a danger to others or the individual. And the question before the Supreme Court is, are the EEOC regulations valid because they expand on the direct threat defense. And the court held the EEOC regulations were upheld and the danger to self is now recognized under the ADA as a defense under Title I. And I want to point out in the Title I one application is that many people in the disability communities due to this kind of opportunistic approach by employers, if the employee feels their job is safe and their doctor feels the job is safe, the employer shouldn''t come in and say, "No, no, you are wrong, the job really is unsafe for you." But according to Echazabal, the employer can do that. But it is interesting to note that under Title III, and the Title III regulations were written by the Department of Justice not the EEOC, direct threat only includes threat to others not danger to self. And so there is an open question whether the threat to self defense does apply under Title III or does not. And you can see here we cited the Celano case which held that the threat to self defense does not apply under Title III. And again, we cite the Great Lakes webinar on direct threat which covers this issue in much more depth. In the case of Darnell versus Thermafiber, summary judgment was affirmed for an employer who did rehire an employee with insulin-dependent Type 1 diabetes. Under pre-employment physical, which was given after a conditional job offer, the doctor giving the physical found that the diabetes was not under control, and in fact, the applicant admitted that he didn''t really take care of his diabetes well. He wasn''t sure of the last time he saw a doctor and had other issues. And the court held that employee is not qualified if his disability poses direct threat to his safety or the safety of others applying the Echazabal case. Of course with that uncontrolled diabetes in a manufacturing plant with dangerous machinery could cause serious injury. As required under the direct threat analysis, the employer did rely on objective medical evidence and an individualized assessment in making its decision. And in fact, the applicant admitted that he did not have his diabetes under control. The next case is Clayborne versus Potter. In this case, the U.S. Postal Service employee sued, and remember, federal employees are covered by the Rehabilitation Act Section 504, and this employee had retinitis pigmentosa, a progressive eye condition which caused her significant vision loss. And after the employee had a few accidents in the workplace related to her vision, the employer had a fitness-for-duty evaluation, and then placed her on sick leave because the employer felt that she posed a direct threat to her own safety. And the employer the Postal Service, in this case, modified the employee''s duties over a time and vastly reduced her duties to only one task that of stacking and clearing bins. And the court relied on Chevron and Darnell in recognizing the threat to self defense, and said that defense applied here due to the objective fact of the three separate accidents that the employee had at work which shows that she was in fact experiencing some threats to her safety. In Taylor versus Rice, and this is the case, I think, we talked about under direct threat before. The plaintiff applied to be an officer with the Foreign Service but he was rejected for that position due to his positive HIV status. And at that time, the State Department had a policy that prohibited hiring people with HIV for these types of positions under the thinking that there might be medical treatment that would not be available in a less developed country where they might be stationed. The trial court relied on Echazabal and found that the plaintiff would be potentially a direct threat to himself in such a situation, but that decision was reversed by the D.C. Circuit Court, the Appellate court. And as you may remember, under the direct threat analysis, an employer has the duty to see if a reasonable accommodation would alleviate, or eliminate, or reduce any direct threat. And in this case, the Appellate court held that there were accommodations that might reduce the direct threat so there was no substantial risk of significant harm. And in fact, Mr. Taylor had proposed two accommodations. One, granting him Class 2 clearance, only placing him at overseas posts where they did have sufficient medical staff, where he can access local HIV physicians and diagnostic laboratories, and have a career there that does this wave and essential draft function. I think that is a little bit of an undecided question, but he had a second option, which I think made even more sense, which would be to send Mr. Taylor to any post, but if he did need to get medical care, that he should be able to use his allotted leave time to access medical care. And the court sent the case back to the trial court to examine whether either these accommodations or another one would eliminate the direct threat. And then as a follow-up, in February of ''08, the State Department announced that it was lifting its ban on hiring people with HIV in the Foreign Services, thus, eliminating that policy. Next, we are going to get to an issue which affects almost every Social Security beneficiary who puts forth an ADA claim. In this case, Mrs. Cleveland was terminated by Policy Management Systems, and after her termination, filed for Social Security and also filed an ADA claim against her employer. And there is a question, and it gets into some technical areas of a legal principle called an estoppel. An estoppel essentially means if a person makes one statement in a judicial forum, this would be prevented by asserting something totally opposite in another judicial forum. And the lower court had used the estoppel to say that Mrs. Cleveland was not entitled to pursue an ADA claim. The Supreme Court reversed that decision, and actually, found a lot of cases or a lot of situations where a person who is a Social Security beneficiary could assert an ADA claim. And a lot of it revolves around the different definitions of disability under the Social Security Act and under the ADA. So the court found, identified five reasons. One, the ADA considers reasonable accommodations in determining if someone is qualified, but Social Security law does not look at reasonable accommodations in determining if someone is disabled. The court also pointed out that there is differing analysis under each law. For example, Social Security has listed disabilities if a person is deaf or blind. It kind of moves ahead quicker in the process of becoming eligible for Social Security benefits, but, clearly, that doesn''t mean that anyone who is deaf or blind is not able to work. It is just part of their process related to the Social Security definition of disability. The Supreme Court also pointed out that the Social Security has worked and sent us rules that anticipate that Social Security beneficiary who would be working. And shortly after this case came down, in fact, the Ticket to Work Act was passed which, in which Social Security is seeking to have more of its beneficiaries, in fact, trying to double the number of beneficiaries who receive Social Security and are able to return to work. So, Social Security Administration itself recognizes that people may collect benefits and still be capable and qualified for work. And the court pointed out two more reasons that people''s conditions change overtime and alternative pleading is allowable under the federal rules of procedure. I may also cite the Great Lakes webinar on qualified issues at the bottom. And here is some language from Cleveland. It says, "Pursuit and receipt of SSDI benefits does not automatically stop the recipient from pursuing an ADA claim. Nor does the law erect a strong presumption against the recipient''s success under the ADA. The two claims do not inherently conflict. There are too many situations on which an SSDI claim, a Social Security Disability Insurance Claim, and an ADA claim can comfortably exist side by side. And the court also said that SSA representation of total disability differs from a purely factual statement in that it often implies a context related legal conclusion. So, if someone says I am disabled to the Social Security Administration, what they are really saying is I am disabled for purposes of the Social Security Act. Going on, an individual might qualify, this is the Supreme Court talking, an individual might qualify for SSDI under the SSA''s administrator rules and yet, due to special individual circumstances, remain incapable of performing the essential functions of her job. But the court said the plaintiff, the employee has a burden to put forth one of those five reasons that we identified, and they must put forth a reason sufficient to warrant a reasonable jurors concluding that assuming the truth of or the plaintiff''s good faith belief in the earlier statement, the plaintiff could nevertheless perform the essential functions of her job with or without reasonable accommodation. And I think this legal factual distinction is very important. A statement to Social Security Administration "I am disabled" is really a legal statement saying "I am disabled under the rules of the Social Security Administration, the Social Security Act", but a factual statement, for example, "I can''t stand for more than five minutes, I can''t lift over ten pounds, I have trouble moving my arms, I am unable to stay awake on the job", those are factual statements, and those types of statements made to SSA to Social Security may come back and haunt someone in an ADA case. And there was a webinar on this under Qualified. And in the Legal Brief, there are actually two law review journal articles on Cleveland issues, and also both referenced in the Legal Brief. So, for people who wanted to do more Cleveland reading, please feel free and go ahead. If anyone can tell me the picture of that young dude up in the right hand corner, you get extra bonus points. So, on the lower courts, and there has been a slew of cases under Cleveland, they have tried to apply those principles. So, in Voeltz versus Arctic Cat, the employee applied for Social Security benefits at the suggestion of Human Resources, and he told Social Security that I could have worked just fine if my employer would have accommodated my multiple sclerosis and the doctor suggested several accommodations - modified job duties, modified schedule, an occupational therapist consult that would have helped the employee. The employer refused to do those and says that, "No, just go on Social Security", and the court said, well, no, that employee did give a sufficient reason to explain any apparent type of inconsistency between his claim under the ADA and his receiving Social Security benefits. In the Krensavage case the court held that the plaintiff''s ADA claim is barred as the only accommodation he requested was extended unpaid leave and there was no showing that that accommodation ever would have led her become qualified. So, in that case, because in some ways the accommodation requested may have been unreasonable, the court held that that exception regarding the ADA considering reasonable accommodations and Social Security law not considering them was not, cannot be used by that employee because they did not really request an accommodation that would have allowed them to be qualified. And then in Crews versus Dow Chemical, a physician''s assessment, the employee was indefinitely incapable of returning to work precluded an ADA claim, so the employee was not a qualified individual and that is why it is very important for employees to be careful of what their doctor''s note says when they are seeking accommodations, or in some cases, if they are going before SSA if they also have an ADA claim. Here the doctor said the employee was indefinitely incapable of returning to work and, clearly, the court said, well, that means that they are not qualified. In a couple more cases in Butler versus Round Lake Police, a police officer with chronic obstructive pulmonary disease told the pension board he could barely walk a few blocks or climb stairs and was not reinstated, and this kind of relates to the factual types of statements I was pointing out earlier, and the court held that he is there for a stop from claiming that he was qualified for the job cause he told the pension board that he was unable to do essential functions of his job, walking, climbing stairs, et cetera. And in this case too, I just wanted to point out that the Cleveland case was used but even though it wasn''t Social Security benefits, it was pension benefits, and it has been used also in settings of long term disability types of benefits as well. And then the Solomon case, under the Federal Employees Retirement System, under that system, disability benefits are only awarded if there were no reasonable accommodations, and the employee to collect must be unable because of disease or injury to render useful and a sufficient service. And the court held that if someone is receiving benefits under this Federal Employee Retirement System, that precludes them from making the argument that, well, they could have done the job if they were accommodated because the only way to receive those benefits is if there are no accommodations that would enable the persons to do their job. And then the last Cleveland case we will talk about here is Finan. This individual had some seizures in meetings due to epilepsy. He did return to work and was eventually terminated for poor performance, and then as often happens after the unemployment run out; they applied for Social Security benefits. And the Social Security Administration, in their hearing, did not find that Mr. Finan was incapable of performing the essential functions of his job. Rather, the finding from Social Security was there was not a significant number of a job in the national economy that he could perform. And this case went to trial. And as you can see, Mr. Finan was awarded $410, 000 dollars of back pay and $65,000 in compensatory damages. And his ADA claim was regarded as the employer said, well, he wasn''t a person who was regarded as having a disability, he was a person who had an actual disability and, in fact, the disability rendered him not qualified. And the court said, and remember this was filed before the ADA Amendments Act so it was kind of the lower standard for definition of disability, the court said no, these laws have different definitions. Social Security and himself never said that he couldn''t do the essential function of his job. They have just found that after he was terminated, there weren''t enough jobs in the national economy that he could do. And also pointed out one of the other reasons that Mr. Finan''s condition did change overtime. And for these reasons, the jury verdict was upheld. And I just want to briefly mention some of the other Supreme Court cases which are covered in a little more depth in the brief. We just wanted to pick the main ones to talk about. This Board of Trustees of the University of Alabama versus Garrett, which held that state employees are not entitled to money damages due to the immunity applied given to states under the 11th Amendment but that state employees may get injunctive relief. And the 11th Amendment will come up as we will see in Tennessee versus Lane and some other cases. And then there is the Wright case which the Supreme Court said the collective bargaining agreement that requires arbitration cannot waive statutory rights under the ADA unless the waiver is clear and unmistakable. EEOC versus Waffle House is that the EEOC may seek victims'' specific relief even if there is an arbitration agreement that binds the employee, and as part, remember, when the EEOC files a suit, they are representing kind of the people, the government, not necessary the individual employee themselves even though they can get relief for that employee. And then the Clackamas case which we talked about at the last webinar on employee defenses in determining the number of employees under the ADA, we looked at the common law criteria for master-servant relationship, thing like degree of control, hiring, firing position and types of the parties, whose equipment is it used, and share of profits and losses. So I think with that, I am going to unlock my talk key and I think we will take a brief break for questions before Barry begins with the Title II. Thank you.
Just a reminder that if you do want to ask questions, you just need to either type the question into the box or press the control key and then go ahead and speak. It does appear we have some confusion regarding how people can get the brief and the power point and whether people are registered or not, Claudia or Peter, I don''t know if you want to address that so folks can understand better that process.
The power point and the legal brief, as I wrote in the chat area, will be e-mailed to everyone that registered. All those that did not register, you are welcome to participate in the session. It is a free session. We just ask that you do go through the process of future sessions and register. This helps us to keep track, for statistical purposes and funding purposes of who is participating and those numbers will help keep this program going. So, please make the effort to register. You will still be able to access the session, the recording, and the materials, but you will have to wait 10 days when we archive the session, and then you will visit the archive page on the ada-audio.org for the legal webinar section, and you can view the recording there. The transcript will be posted as well. But you will need to wait at least 10 days while we edit and upload that. But I just want to emphasize for you to register to help us keep this program growing and keep in order as to who is getting the materials and the information.
Thanks, Claudia. Any questions on the Title I cases that Alan asked? Again, all you need to do is type in to the chat box or press the control key and then talk. Okay, well, it looks like there aren''t any questions at this time. So, why don''t we go ahead and we will start with Titles II and III and have that discussion, and we''ll have time at the and for people to ask questions about those cases as well as any that come to you regarding Title I as well.
Hi, Barry, I just want to point out a comment that posted there and she is wondering about the connection between Cleveland and the picture, so she is talking to Alan there and his graphics that he likes to load.
Right. I know, thanks for the reminder. Peter indicated that we should probably repeat the questions in the chat box for accessibility purposes. And Alan had talked about a picture that was in the Cleveland section and it turns out that that was Ian Hunter of Mott the Hoople who wrote Cleveland Rocks, which is a song I think I remember from the Drew Carrey Show. So, with the trivia out of the way, why don''t we move to Titles II and III? Interestingly, unlike the Title I cases where plaintiffs mostly lost, the Supreme Court has issued much more favorable decisions under Titles II and III, and I am going to be talking about two cases under Title II and two cases under Title III, and in all of those cases, the plaintiffs were successful. So, the first case is Olmstead versus L.C. And people may know that when Congress passed the ADA, they found that isolation and segregation was a serious form of discrimination under the ADA and that state and local governments under Title II had a responsibility not to exclude people from their programs, provide program access, and then also provide modifications to those programs as necessary. And then Congress also directed the Department of Justice to issue regulations on Title II. And one of the regulations they issued has been commonly referred to as integration mandate because what Department of Justice said is that state and local governments have a responsibility to provide their services in the most integrative setting, and went on to talk about making modifications to programs. And they did indicate a limitation on that saying that modifications don''t have to be made if it would somehow fundamentally alter the state or local government program. And then that leads us to Olmstead versus L.C. and I am sure many of you are familiar with this case. Real briefly, it was not class action. It was actually brought on behalf of two women in Georgia with mental illness, intellectual disabilities and they had been admitted to a state psychiatric hospital. And after they had been treated in the hospital, the state officials recommended that both of them could be placed in a community-based program. And they clearly wanted to move into the community. Unfortunately for them, in Georgia there weren''t sufficient community services available to accommodate their request and so they remained in the institution. L.C. stayed for three years and E.W. one year when they filed suit. So, they did file a suit claiming that the state was violating the ADA by failing to provide community services and it brought suit under Title II. And so the Supreme Court ultimately decided this case. And some people compared this case to Brown versus Board of Education for the African-American community, and that it talks about that unwarranted institutionalization or segregation is inherently discriminatory. Separate is not equal. And found that that is a form of discrimination under the ADA. And the court talked about that segregation perpetuates unjustified assumptions about people with disabilities who are in institutions, that they are incapable or unworthy of spending a community life. They also talked about that inherently institutional confinement can severely diminish people''s life, and they gave examples of different aspects of everyday life that are diminished by being in a large congregate facility like family relations, social context, work, educational advancement, and cultural enrichment. The court then said that there are really three requirements that people have to meet in order to receive the community placement under the ADA. And the first one is that treatment officials find that community placement is appropriate for the person just like they had found for the plaintiffs in the Olmstead case. Second, that the person does not oppose placement in the community and, again, both the plaintiffs and Olmstead clearly wanted to live in the community. And then the third requirement is that placement can be reasonably accommodated taking into account the resources of the state and the needs of others with disabilities for services. So, you don''t look at people in a vacuum. You really look at the overall different services that are being provided by the state and all the different people that the state is obligated to serve. And the way that the subsequent cases have played out it is really this third requirement where we are going to be seeing the bulk of the litigation. Next slide, please. Thanks. So, the state also, excuse me, the court also gave the state some guidance on how they can meet their obligations under the ADA. And they said that if a state has what is called a comprehensive effectively working plan for evaluating people and placing people with disabilities in less restrictive settings and a waiting list that moves at a reasonable pace, that is not controlled by the state''s endeavors to keep the institutions fully populated, then the state will be able to show that they have met their obligations under Title II in the Olmstead decision. And what we will see is that the comprehensive effectively working plan issue ultimately becomes an issue for litigation. Another issue that has arisen under the Olmstead case is really who can bring suit to enforce their rights under Title II. You will remember the Olmstead facts involved two people who are actually residents in an institution. But the question arose, what about people who are at risk of institutionalization? Meaning people who are without community services, aren''t living in an institution, they are living in the community but they don''t have services from the state and so, therefore, they have no other option than to move in to a large congregate setting to get the services they need. The typical scenario here is an adult oftentimes living with aging caregivers and who are at risk of institutionalization if perhaps that caregiver can no longer provide the support that that person needs, that they are at risk of institutionalization. And generally, since the Supreme Court decided Olmstead, courts have extended the Olmstead decision to include people who are at risk of institutionalization. Excuse me. Going back to the slide, I am not finished there, Alan, thank you. The Fisher case is a good example of the at-risk-of-institutionalization concept. This was a case involving the State of Oklahoma and they had been providing unlimited prescription drugs to people living in the community on Medicaid as well as people in nursing homes and other institutional settings. But because of budget reasons, the State of Oklahoma decided to cap the prescription drugs to a certain number, five prescription drugs if you are in a community program. They did not provide the same cap for people in nursing homes and, in fact, you had unlimited prescription drugs if you are in a nursing home. And so the plaintiffs here were people who are living in the community who are receiving more than five prescription drugs and they claim that the state''s cap here was a violation of the ADA because the medication limits place them at risk of institutionalization. And in response to this claim, the State of Oklahoma and, actually, the lower court said that these people did not have an ADA claim because they were not currently institutionalized and, therefore, did not have standing to bring the suit. And the Tenth Circuit disagreed with that and said that the integration mandates protections arent limited to those who are currently institutionalized. But, and I quote the language here, "also those who stand in peril with segregation because of a state policy, therefore, at risk of institutionalization". And so as a result, the court found that they could bring suit under Title II even though they currently weren''t in institution. And you will see several cases listed here and there are more in the brief that go into this at-risk-of-institutionalization, the most recent case is one out of Hawaii, where Hawaii decided to change from a fee-for-service plan to a managed care plan reducing the services that people with disabilities were able to get and they claimed that they are at risk of institutionalization because of the reduction in community disability-related services. This concept of at-risk-of-institutionalization has really been well established since the Olmstead decision, but it is really become much more prominent recently because of the recession and many states are cutting their budgets. And these cuts are including cuts to community placements for people with disabilities. So as these cuts have been coming down, people are then brainstorming what is the legal theory to try to prevent those kinds of budget cuts. And one of the legal theories that really has emerged is using the ADA and claiming that these cuts of community programs are placing people with disabilities at risk of institutionalization, and therefore, the states are violating Title II if they make those cuts. And the V.L. versus Wagner case is a really good example of this sort of recent new emerging case law using the at-risk-of-institutionalization because of budget cuts. This is a case out of California and the State of California was proposing to reduce or terminate some in-home services that were being provided for people with disabilities and the elderly. And the case indicated that if the cuts went through, about 36,000 people were going to lose all their services in the community and almost 100,000 people would lose some significant services. So, a suit was filed to try to prevent these cuts and the argument was that the state was violating the ADA because the cuts would place the plaintiffs at risk of institutionalization. And the court granted what is called a preliminary injunction finding it was likelihood, likely that they would, the plaintiffs would be successful and the preliminary injunction prevents the budget cuts from taking place while the litigation is pending. And the court found that these budget cuts could violate the ADA''s integration mandate. They talked about that it would increase in more expensive hospitalization and institutional care and that that increase would likely outweigh any short term savings that the state would get from making these cuts. So, the court was indicating that it would be hard to maybe have that fundamental alteration cost defense because of the increase cost in institutional care and hospitalization that would arise. Though the state made an interesting argument, they said that people with disabilities really weren''t at risk of institutionalization because many of them had family members that could assist them and care for them even if the cuts went through and so therefore they weren''t really at risk of institutionalization. And the court didn''t accept that argument, you know. They said that this is really the state''s ultimate responsibility whether or not people have family members or other caregivers who are going to sort of sacrifice their own resources and time to assist people that really is the state''s responsibility. The other thing that was interesting here was when you try to get a preliminary injunction; you have to show a risk of imminent harm. And the court here said that institutionalizing people with disabilities who can live in their home with support would likely cause injury to their physical and mental health including shorten life spans and even death. So certainly, a very serious imminent harm that was projected here and viewed by the court. Next slide. As I mentioned in the Olmstead case, the state can show that it has met its ADA obligations if they can demonstrate that they have what is called a comprehensive effectively working plan for people with disabilities. And, initially, there wasn''t a lot of litigation on this issue, but developments in recent years have shed some light on what this term comprehensive effectively working plan really means. Most recent case looking at this is Disability Advocates, Inc. versus Paterson, a case out of New York. This was a case that went to trial last year against the state of New York and it was brought on behalf of people with mental illness who are living in large privately run but state-funded facilities. They are called adult homes. And, ultimately, the court found for the plaintiffs finding that New York had violated the ADA. Just a backup on these homes, they are really large institutional settings that have usually more than a hundred person per facility and had inflexible routines that limited personal autonomy, didn''t allow people to interact with other people who didn''t have disabilities. And although the state argued that these weren''t institutions because they were actually located in residential neighborhoods and people could leave even though there were some restrictions, the court said that these are, you know, the Olmstead is not limited to state-operated facilities but also includes state-funded facilities that are privately run and managed, and oftentimes some of these places are even for profit. And arguably, those facilities had even more incentive not to provide community services and because of the fact that they have a financial incentive to keep their beds fully populated. So, in addition to the comprehensive effectively working plan issue, this case is also, I think, very helpful in explaining that Olmstead is not limited to just state-operated facilities. But moving on to the next slide, the court did also go on and talk about what is required for a comprehensive effectively working plan, which they found the state did not have. And you see here four factors that are common that they should have as a bare minimum to have one of these comprehensive effectively working plans. Those factors are time frame or target date for placement in community settings, the approximate number of residents to be placed within a particular time period, eligibility for placement, as well as a description of the collaboration that is going on between local authorities and all the different services like housing and transportation, education, those kinds of things. There was an earlier case that is in the brief that from the Third Circuit, the Frederick L. case and that goes into some of these factors in even more detail. I see that has a question about whether Disability Advocates, Inc. case has been appealed. It, actually, isn''t complete. It was bifurcated liability and remedy stage. So, the court has already found that there was liability and that they violated the ADA, but a remedy hasn''t been issued by the courts so the trial stage is technically not over. And after that remedy is issued, then we will have to watch to see if it is appealed or not. Another case that looked at the comprehensive working plan and also the issue of fundamental alteration that I referred to before is the Crabtree case. And this is a case out of Tennessee and it is similar to the V.L. case and that it was a case involving budget cuts that impacted people in the community and they are at risk of institutionalization. And here the court found that the state did not have the comprehensive effectively working plan here. They said it lacked the projected date for implementation. It wasn''t operational. So, although there were some written documentations that the state pointed to as a plan, the court said it really didn''t have that. There is a case in the brief, Braddock versus Arc of Washington of the Ninth Circuit where the court found that the state did have a plan. So if you are looking for cases that go the other way, you will find that in the brief. The Crabtree case also talked about the concept of fundamental alteration. Interestingly, the early cases in Olmstead many of them found that any type of short term additional cost could potentially be a fundamental alteration which sort of was making that defense very looming. And the subsequent case is that I have looked at this, I have taken a narrow, have taken a different view of fundamental alteration saying that if every, you know, expense that would be required to provide community services in short term expenses would result in a fundamental alteration. You know, it really takes away the integration mandate. So, although the initial cases were indicating that fundamental alteration would happen with really any expense, additional expense incurred, most of the more recent cases have backed off of that more narrow interpretation. And here you will see on Crabtree some factors to look at when whether the fundamental alteration defense arises. With the first one the state''s ability to continue meeting the needs of other institutionalized tensions being the most prominent one. Mainly, the courts are saying that any kind of plan has to be specific and measurable to show, you know, commitment to the institutionalization and which the state can be held accountable. And in the Crabtree case they have found that Tennessee did not have that kind of plan. And on the last case on fundamental alteration is a case out of Illinois, Radaszewski versus Maram. And this is another case involving at risk of institutionalization. And this was a young man who had significant disabilities. He was getting nursing care under a children''s Medicaid Waiver Program for kids who were considered "medically fragile" and he was getting about 16 hours of nursing care. But when he turned 21, the adult program in Illinois limited the nursing care to five hours. And so he was arguing that he was at risk of institutionalization because he wouldn''t be getting the services he needed. And you will see on the next slide that the state said that serving him in his home was a fundamental alteration, and therefore, it wasn''t required to provide that same level of care. But the case went up to the Seventh Circuit initially and the court said, you know, we don''t see a fundamental alteration here. The states are already providing this service, it is not a new service. They just need to provide more of it and they could clearly provide it for kids, so why can''t they do it for adults? The case ultimately went to trial and they found that the case of the plaintiff was even stronger because they showed that it would be much less expensive for the state to serve the plaintiff, continue to serve the plaintiff in his home rather than the nursing home. There have been subsequent cases in Illinois in the same issue. The policy hasn''t changed and you will see citations for those and, right, we actually litigate those, too, and we are litigating another case, Deckmeyer which is currently pending cause the State of Illinois has not changed this policy. So, those are really the major issues that have been litigated under Olmstead. Now let''s turn to the other Title II case which is Tennessee versus Lane. As Alan alluded to, the Supreme Court found that states are immune from Title I cases that are brought against states for money damages and the reasoning being that the court found that there was insufficient evidence of a history of employment discrimination by states, and therefore, they weren''t going to waive, to take away the sovereign immunity the states have. So but Garrett was clearly limited to Title I employment cases. So, the question was, what about Title II? Our state is immune from Title II cases as well. And Tennessee versus Lane is the case that really addressed that issue. It involved two individuals from Tennessee who were trying to get in courthouses that weren''t accessible. One of the persons was a court reporter with a disability and the other was somebody who was there, a defendant who was facing misdemeanor charges. And at first, he crawled up the stairs and then finally refused to crawl up cause he couldn''t get in and, ultimately, he filed suit under the ADA Title II. And Tennessee argued that they are immune under Title II and that Garrett should be extended to Title II as well. And the plaintiff said we should at least get injunctive relief like you got under Garrett but we should also get money damage as well because there was a stronger history of discrimination by states under Title II. And the Supreme Court agreed with the State of Tennessee with respect to this issue and said that at least with respect to courthouse access, they found that Title II did appropriately aggregate the state''s immunity here. And just to back up, to get, to take away the immunity, Congress first has to expressly show that it intends to take away the immunity and they did so in the ADA. And then it is taken away if you can show that if the remedy that the statute provides is what is called congruent and proportional to the injury involved. And here the court found that there was extensive history of discrimination involving a state local government, and not only did they look at court issues but they looked at other issues, the state sponsored discrimination as with people with disabilities and variety of areas including voting and education until, ultimately, they found that there you could get money damage as in this case. But, again, they did limit it, the specific remedy, to courthouse access. And so if we go to the next slide, what this raises is what about other types of Title II services? Are they, are states subject to litigation for money damages under those as well? And it really has depended on the type of issue, and even within the issue there has been some split in the courts. The case of Brewer on this slide, Brewer versus Wisconsin Board of Bar Examiners involved a woman who was applying to be an attorney getting a bar application and she disclosed that she receives Social Security benefits. That tipped them off that she was a person with a disability and they required her to undergo a psychological evaluation which she refused to do. And, ultimately, she sued under Title II because she couldn''t obtain her bar license. And the court did not agree to extend Lane to this context because they said that there really wasn''t any history and pattern of discrimination regarding attorney licensing schemes. It was much different, the court said, than access to court where there is much greater history. And so they said there was no waiver here of sovereign immunity. Another case that raised this issue involved court but a little different aspect of court which is jury duty. In this case, you had a prosecutor who, there were two perspective jurors who were blind and he decided to use his parameter challenges to not have them on the jury because he had a lot of visual aspects to his presentation. And the defendant in that case, who had a disability as well, felt like that unfairly prejudiced him and that that took people with disabilities off of the jury, at least two people who were blind, and he claimed that this, under Lane, that jury service is similar to courthouse access. And the court did not agree with that. They said, you know, this preemptory challenges have been upheld. Although the preemptory challenges of people who are for race or for gender has not been permitted, the court said that it would allow it here because there was a rational basis as to why they were not allowing the person to serve on the jury. It wasn''t discrimination. It was really because they weren''t qualified to do the jury service fully because of the visual aspect of the prosecutor''s presentation. So, although Lane does go to access to the courts and participation in courts, it was not extended to a prosecutor''s use of preemptory challenges. One issue where the courts are split is the issue of whether Lane extends to education. And you will see here we have cases going both ways. The Association for Disabled Americans case they found that education was a basis for elimination of the sovereign immunity under Title II. This involves students who claim that the university was failing to provide physical access and sign language interpreters, effective note takers and so they sued under Title II. And, ultimately, the courts said that yes, Lane should be extended to education because there is a long history of discrimination in education. And, but what you will see here also are some other cases that go the other way, particularly the Johnson case out of Connecticut which says that education is not a fundamental right and is different than access to courts. And so, this is an issue that you will see courts going both ways and maybe one that ultimately the Supreme Court has to clear up because of the split in the circuits. The other Title II cases that are in the brief are the Yeskey case, which said that Title II protects state prison inmates. The Buckhannon case, which said that you can''t get attorney''s fees under the ADA unless you have a judgment consent decree or some sort of judicial stamp of approval of the case. The Barnes case, which said that punitive damages aren''t allowable under Title II or 504. And then the U.S. versus Georgia case, which is an extension of the Lane case to the concept of discrimination in prisons where they found the violation of the 14th Amendment. But in the remaining timeline, why dont we move to Title III. There are two cases we are going to focus on in Title III, the Bragdon versus Abbott case and PGA Tour versus Martin. You might remember the Bragdon case was the first ADA case to be decided by the Supreme Court. It was under Title III. And this was the case involving a woman with HIV whose dentist refused to treat her in his office, said that they had to have the dental service done in the hospital setting and it would cost more money and it was a further drive for her. And so she sued under Title III. And it really raised a couple of questions. The first question was whether she had a disability or not and the dentist said she doesn''t have a disability. She is asymptomatic HIV. She can''t show she is substantially limited in a major life activity. And she said, yes, I am limited in the major life activity of reproduction. I have chosen not to have kids cause I don''t want to infect my sexual partner or pass it onto my unborn child. And the Supreme Court agreed that reproduction is a major life activity. It wasn''t one that was necessarily in the regulations, but the court found that it is a major life activity. The court said that even the major life activities don''t have to be public or economic or daily in order to be major. And this was an important concept as we will see in some of the subsequent cases. The other thing I wanted to say on Bragdon before we move on is the court also looked at the issue of direct threat. The dentist was saying that it was a threat to his safety to serve somebody with mental, excuse me, with HIV, and the court said that the analysis hadn''t been done below correctly, that you need to look at the best available medical or objective evidence and not speculate or based on generalizations or stereotypes of even good faith that wasn''t enough in determining whether it was a direct threat. And so they sent that back down for further analysis. The other thing I just want to mention is that with respect to the major life activity of reproduction, this shows that the list of activities and the ADA regulations is not exhaustive. So, even though some things are listed, the courts can recognize additional major life activities as well. So, the subsequent cases that have come down since Bragdon, how they have been applied in the lower case, the Bragdon case. The Fiscus case, I think, is a great example of how Bragdon has been applied outside the facts of HIV. This was involving an employee who had renal disease and what she ended up saying was that she was substantially limited in the major life activity of cleansing her blood and eliminating bodily waste. And the courts extended Bragdon and said, you know, just like how asymptomatic HIV, even though it is not an external symptoms or external activity, it doesn''t matter if it similarly in, for kidney disease, it doesn''t matter if, it doesn''t have to be external. It can be an internal autonomous activity. You are not required to show that the activities were current or daily feature of life and the issue is not the frequency of the activity but the importance of the life of the individuals. So, obviously, cleansing the blood and eliminating bodily waste is a very important activity for that particular individual and so they found that to be a major life activity. And this is really a precursor, I think, to be major bodily functions that Congress recognized in the ADA Amendments Act. You will recall that in addition to major life activities Congress has now put a list of different major bodily functions. And that I think the Fiscus case really came up with before the ADA Amendments Act. The next case is the Lees Log Cabin, another applying the Bragdon case. And this is sort of bizarre case factually, so I don''t think you want to put too much credence into this case as far as being one that is going to be applied in a lot of different cases just cause it has some bizarre things that happened. What happened was a person was not hired allegedly because she was HIV positive and the complaint was filed on that basis. But then in response to motion for summary judgment, the EEOC talked about that it was because the person had AIDS and not, they didn''t necessarily talk about HIV at that point. People might know that AIDS is really when somebody who has HIV, their T-cell count gets below 200 or they have certain opportunistic infections. And the court said, you know, if you look back at Bragdon, Bragdon said that there are no per se disabilities. You still have to have the individualized assessment. And since the EEOC, that HIV and AIDS aren''t synonymous, and since AIDS was raised later during the summary judgment stage, it was too late to be considered. And since the summary judgment briefing didn''t talk about HIV and how that substantially limited the person in a major life activity, there was really no record of any type of substantial limitation that the court could consider. And so, therefore, they found that the person didn''t meet their burden on showing that they had a disability. And the reason this case is here is because it cites to the fact that Bragdon requires an individualized analysis and that no major life activity and impairment is a per se disability under the ADA. Interestingly though now, we have the ADA Amendments Act and these major bodily functions and immune system is considered one of those major bodily functions. So, I think we are going to see less plaintiffs having to rely on things like reproduction and instead can just focus on the major bodily function of the immune system as a way to show that they have a disability. You also have the new EEOC proposed regulations which talk about certain types of impairments should be quickly and easily assessed to be a disability on the ADA and HIV is one of those that is listed. And then the final case we are going to talk about is you know, I am sorry, I had one more thing I just want to mention on Bragdon. There are a couple of other cases that I think are in the brief that aren''t here that are important to note. One is that the concept of reproduction has been extended to other conditions other than HIV, that being hepatitis C as another impairment that is found to be a disability under the ADA under the major life activity of reproduction. The other way that Bragdon has been extended is cases where sexual activity was alleged and not reproduction. There is the McClendon case in the brief where a person with mental illness did not engage in reproduction but did say that they were not able to engage in sexual activity because of impotency that was caused by the mental health drugs that they were on. So, even though, again, sexual activity is not one that is listed in the regulations and is now not even listed in the ADA Amendments Act, it is one that courts have recognized and maybe something that people can successfully use in future cases. Now, let''s finally move to the Martin case, PGA versus Martin and people will remember that this was a case brought by K.C. Martin, a golfer, professional golfer, who had a circulatory disorder and it made it difficult for him to walk long distances. And he had requested that he be allowed to use a golf cart in PGA tournaments because of his circulatory disorder. And the question was whether or not Title III should cover golf tournament participation. And the court ended up saying yes, it does, that participating in golf tournaments is a benefit and privileges under Title III. And that people who are covered under Title III are entitled to reasonable modifications of policies like the policy that people have to walk the course rather than riding golf carts. And there was an argument that Title III should be limited to customers. And the court didn''t accept that argument but they said even if it is limited to customers, K.C. Martin is a customer even though he is not sort of paying a ticket to come watch the tournament. He is paying a fee to participate in the tournament and, therefore, would fall within the view of what is considered a customer. The court also said, which I think is helpful for future cases brought by plaintiffs, is that the definition of public accommodation should be liberally construed to effectuate the purpose of eradicating discrimination. The court also said that a golf cart, using a golf cart, does not fundamentally alter the nature of tournament golf, and so, therefore, the modification is something that could be required for the PGA to do. Scalia issued a very lengthy dissent and said that Title III only applies to customers and not contractors and that K.C. Martin was not a customer. So, the question after the Martin case was whether the facts were so specific just about golf, whether it would have an impact on other ADA cases. And it really has come up in a couple of context. The first issue is whether or not independent contractors under Title III are covered. And interestingly although K.C. Martin was about golf, most of the cases on this issue involved medical doctors who have staff privileges at certain hospitals. And, technically, they are not employees so they can''t bring any discrimination claim under Title I for employment discrimination, but some courts have recognized that they can bring claims under Title III as independent contractors who have privileges that are being denied. So you have to two cases here, the Menkowitz case and the Haas case, and both of those involved medical doctors with disabilities who had claimed that they were discriminated against when they lost their privileges. And the court found that both of these did have standing under Title III. They couldn''t bring under Title I cause they weren''t employees but that they were denied the enjoyment of the privileges of the hospital, and therefore, have standing to bring suit under Title III. The case that goes that goes the other way is the Wojewski case which found that Title III should not be extended to independent contractors. Interestingly, the Wojewski case relied upon Scalia''s dissent in the Martin case which is kind of odd to be using the dissent as your legal argument, but at least in this particular case, they said that that was appropriate. You should also note that there are some Section 504 cases and the most recently one of the Ninth Circuit, Fleming versus Yuma Regional Medical Center that have allowed independent contractors to be covered under Section 504. So, entities that receive federal funding might be subject to a 504 claim as well as the Title III claim. And then the other issue that the Martin case looked at is whether or not, it was the issue fundamental alteration was providing the modification in the walking the course policy, was that a fundamental alteration defense that the PGA could raise. And as we mentioned before, they found that it was not a fundamental alteration. So, in subsequent Title III cases, there have been arguments that changing policies would be a fundamental alteration and some of these are involved in sports like golf. So, the Kuketz''s case is the case involving a person who used a wheelchair, who is a rocket ball player and he had asked for a change in the game rules saying that he needed to be allowed two bounces in rocket ball rather than just the traditional one. And the court ultimately said that that would be a fundamental alteration, and therefore, the request in modification was not required, because unlike the Martin case that did not go directly to the game, they found that this went directly to the rules of the game and the actual playing of the game as opposed to walking between the holes in Martin. So, they found that that was a fundamental alteration unlike the Martin case. And then the next case, the Association for Disabled Americans case involved a person who wanted to play, wanted to change the way the table was set out in the game of craps. I am not a golfer, but I am also not a gambler but, apparently, in craps there is a standard size table and they asked for the table to be changed and modified and lowered so that the person could participate in the craps game. And the court ultimately said that that would be an unfair advantage to people with disabilities if you could throw the dice at a lower angle. I am not really sure why that is an advantage or not but that is what the court said. And so, again, unlike the golf cart in Martin which didn''t provide an unfair advantage, they found that this request in modification would be an unfair advantage and they found fundamental alteration. And I see that Alan has indicated he is a golfer and a gambler, so he can help you out with those questions that you have. And in the last case here is the Fortyune case, which is a movie theater case, and this was a case involving a person in a wheelchair and their companion who went to go see a movie, I believe it was Chicken Run. And although the theater had accessible seating and spaces for wheelchairs and then companions sitting next to it and other people had sat on those companion seat and they said we would like you to move those people from the companion seats, the people who weren''t companions to the person with disability and the movie theater refused. And they said, you know, we have a policy that if we have a high selling movie that we don''t require people to move out of the companion seats. And they sued and said you should modify that policy for people with disabilities, and, ultimately, the court agreed that they should have modified that policy and they issued an injunction that said that people have to move out of those companion seats within 10 minutes of the showing of the movie and it was not a fundamental alteration. And then the only other case that we have listed here for Title III which we are not going to talk about today is the Spector case, which is a case involving foreign flag cruise ships and that is in the briefing. You can get the information there. So, I just wanted to mention the ongoing sort of ADA issues that we have that are remaining that may even turn into future Supreme Court cases, one being that whether or not reassignment should be an automatic placement, the one that Alan talked about in the Barnett case. Another is the one that I just mentioned about the coverage of independent contractors under Title III. There is a split in the courts there. Also, how does Lane get extended beyond courtroom access? As we saw in education, the courts are split on that issue and there are other topics that might arise under state local government services that might arise in the future as well. There is a whole provision of the ADA which has not gotten to Supreme Court, medical inquiries in confidentiality to, it is something that is an issue that arises in a lot of different context, but it is not one that the Supreme Court has looked at. And then also whether or not there is a direct threat to self defense to the extent of the Echazabal case that Alan spoke about beyond Title I, would it apply to Title III or possibly even Title II? And then the other thing is to watch the EEOC regulations under the ADA Amendments Act when they are released. They may provide additional guidance on some of the issues that have come from some of these Supreme Court cases over the years. So, we only have a couple minutes left, but we didn''t have any questions before. But why don''t we see if we have any final questions before we wrap it up. You will see here about the information about the next session which is going to be on April 7th and we will be doing an update on reasonable accommodation issues. We will be looking at the most recent case law and talking about those issues. I see your question thing. Well, the Supreme, the brief talked about where splits are. And when we are talking about the splits, we are talking about splits in the lower courts interpreting Supreme Court cases. And, yes, the brief does talk about where there are splits and how different courts are interpreting some of these issues. Just a reminder that, if you do have a question, just press your control key or type in your question. Well, it doesn''t look like we have any questions here now. Peter, maybe you can answer this. There is a question about the website where people can go with all the different information for the feature things. Actually, I can answer that, it is www.ada-audio.org. It is on the lower left hand side of the screen here that you have on this. And has a question about Olmstead, it says, have you seen cases applying the Olmstead community integration mandate to medical supplies and Medicaid? I haven''t seen that specifically, but I think it is a reasonable extension of the Fisher case where it talked about prescription drugs. So, there may be cases out there that I am not aware of, but I think if there are future cases like that and it would show that the person can''t get the medical equipment that they need, that they would be at risk of institutionalization, I think it would apply. I see that has a question. What reasons were given for the person needing two bounces in rocket ball? The case didn''t get into a lot of detail, but basically, it just was saying that because of mobility issues with the wheelchair it was hard for him to basically hit the ball without an extra bounce. At least that was his perspective. Other wheelchair rocket ball players may not think they need that extra bounce but that is something he said that he needed. Peter has a question. Do you see Bragdon being used to argue against the presumed list in EEOC regulations because of case by case language? You know, if you look at, at least my interpretation of the EEOC is saying that it is not necessarily presumed, but it says that it should be easy and quick. And so I think there is still, the EEOC is not throwing out or proposing to throw out the individualized assessment. It is just saying you shouldn''t have to spend much time improving on certain impairments that are almost always should be considered disabilities.
And, Barry, someone wanted to know, if the Disability Advocates case had been appealed?
Yeah, I think I answered that one, but just to be clear that was a case where there were two stages of the case. There is a liability stage which has been completed and now the remedy stage where the court is deciding what the actual remedy will be. So the case is actually not finished at the trial court level, but will be, you know, eligible for appeal, I suppose, once the court issues a remedy. Has a question about Olmstead cases about people''s right to remain in institutions. There is actually a case, I am not remembering what it is, others online here might be able to remember the name of the case. But I think it was the case, I think I recall it being out at Pennsylvania which said you do not have a right under the ADA to remain in an institution. It doesn''t work that way. The evaluation is on the form right in front of you. You will see that there is a link there that has an evaluation. Any final questions that people have? Hi, it is good to see you. Yes, actually, Department of Justice has become, I think, very involved in Olmstead issues. As a disability rights advocate, we are very excited to see that. They actually just found a brief in our Olmstead case in Illinois, the Ligas case. They also moved to intervene in the Disability Advocates case from New York that I mentioned. They filed a brief in Connecticut and I think even a couple of other cases as well. So, the disability rights section, I think, is, has Olmstead as a very high priority now and is getting very involved. It will be interesting to see if they do initiate some new cases on their own but they are definitely being active in ongoing cases that are out there right now.
Alright. Thank you very much, Barry and Alan, for all the great information. Again, folks, please remember to complete the evaluation for today''s session. Again, Barry mentioned the next up coming session looking at the issue of reasonable accommodation upcoming in April. Please visit the ADA audio conference website, www.ada-audio.org to register for that session. Registering in advance for the sessions guarantees that you will get copies of the materials immediately following these sessions. So, I want to thank all of the participants for joining us today. To exit the conferencing system, you just need to close your internet browser. Thanks, Barry. Thanks, Alan.