Okay, Ladies and Gentlemen, and welcome to your conference titled What Are the Courts Up to; Review and Analysis of the Recent Activity Involving the ADA. At this time all the participants will be in a listen-only mode, but later they will conduct a question and answer session, which instructions will be given at that time. And if anybody should need operator assistance, you can press star then zero, an audio operator will assist you. And as a reminder, today''s conference is being recorded. And now I''d like to introduce your host for today, Claudia Diaz.
Good morning or afternoon, everybody, and welcome to the ADA audio conference series. My name is Claudia Diaz, associate director here at the Great Lakes CDA Center, and I''ll be moderating today''s session. This program is brought to you by the ADA National Network. The ADA audio conference series is offered monthly and we cover a variety of topics, and as our mediator mentioned today''s session, What Are the Courts Up to; Review and Analysis of Recent Activities Involving the ADA is the first session for the 2010/2011 series. If you look on ADA dot -- excuse me -- Ada-audio.org web site, you''ll see that we posted the description for November''s session and then the remaining sessions, the titles are there as well. So you can take a look and see if you''re interested in anything, to register for a session. You can do that on line at www.ada-audio.org. We have several individuals joining us through a variety of mediums, including telephone, streaming audio on the internet, and real-time captioning. A transcript of this session will be created, edited, and posted to the web site, along with the recording within 10 business days following today''s session. We''re privileged today to be joined by our presenter, Barry Taylor from Equip For Equality, he is the legal advocacy director at Equip For Equality, and he will be providing us with valuable information today. Just remind everybody that at the conclusion will be doing the question and answer portion. And if we do not get to your question or did not address your topic we can take those questions after by calling your local ADA center. That number is 800-949-4232. And at this point with great pleasure, I''d like to transfer it over to Barry and he can take things over.
Great. Thanks Claudia, thanks very much for having me again. It''s always a pleasure to speak to this group. And for those of you who aren''t familiar with Equip For Equality, we''re the protection advocacy agency for people with disabilities in the state of Illinois, and if you''re interested in contacting your local protection advocacy agency, there''s one in every state. You can go to our national associations web site, NDRN.org and find out the contact information for your P and A in your state. I also wanted to give two quick plugs. One is the Great Lakes ADA Center has contracted with Equip For Equality to provide a service that you might be interested in, where you can go on line and look up summaries of ADA cases you might be interested in, maybe you hear about a case on the news and you want to get more information. You can go on line to Adacaselaw.org, and you can type in keywords. It could be the title of the case or it could be a key issue involving disability or a location, and then you will get summaries of cases that fit those descriptions. And we''ve got over 800 cases already on line and we''re continuing to add cases. So if this is something that would be of interest to you, you might want to check it out at Adacaselaw.org. The other thing I just want to give a plug for is the Great Lakes ADA Center also contracts with Equip For Equality to provide six legal webinars throughout the year doing in depth legal analysis and litigation analysis on particular topics. And our six topics for the coming year will be starting on November 10, and just like for the audio conferences, you can also go to ADA-audio.org to find out more about these legal webinars which are free. Just click on the button that says legal webinars, and it gives you information about what the topics are as well as how to register. So hopefully you have the handout that was provided with the session. I''m going to be following it pretty carefully and going through it in the order that''s listed in the hand out. And what I''ve done is I''ve picked a number of topics where there''s been significant litigation in the past year. We''re not going to be doing a survey of all litigation of the ADA. Really, what this session is about is what have the courts said recently. So you''ll note, in the topic hand out you have, the cases are limited to cases that were decided in 2009 and 2010. So it''s really about what the courts have said most recently, and I picked out -- obviously we can''t talk about every case that''s been decided. But I picked out topics where there''s been either really interesting issues that have arisen, new issues, or a lot of litigation that are coming up on particular topics. So without further ado, why don''t we turn to the hand out and start talking about the first topic, which I think is one that''s probably on the forefront of a lot of people''s mind, and that''s litigation under the ADA Amendment Act. I''m sure all of you know that congress passed the ADA Amendment Act in September of 2008 to address what they thought were overly narrow interpretations of the definition of disability by the courts. And one of the things we''ve all been waiting to sort of find out is what will the courts do in the wake of the ADA Amendments Act and how will they interpret the definition of disability, will they take a broader definition as Congress has instructed. And I think all of us were hoping that we would have a lot of cases really quickly, and the effective date of the ADA Amendment Act was January 1, 2009. And so what we would be waiting for, cases where alleged discriminatory conduct happened January 1, 2009, or later. But as all of you probably know, before you can go into court, you have to first exhaust your administrative remedies, typically by going to the Equal Employment Opportunity commission, and that takes some time to go through that process, and get a decision, a right to sue letter, and then filing in court, and then the other side to answer and motions and things like that. So it takes a while to get actual decisions under a new law. And it really -- we didn''t really start seeing any decisions under the ADA Amendments Act interpreting the definition of disability until earlier this year in the spring. And so we''ll look at a few of those cases. One of the things I wanted to point out is when the Congress did pass the ADA Amendments Act, one of the significant things they did, and you''ll see this in the cases as well, is that they -- in interpreting what major life activity meant, they not only reiterated some of the traditional major life activities we''ve seen before through the EEOC, they also came up with a new category of major life activities called Major Bodily Functions. And Congress intended to do that because there are a lot of impairments that Congress wanted to have covered by the ADA that the courts were finding didn''t really fit easily in the definition of major life activity. And so they came up with this Major Bodily Functions category to encompass a lot of the impairments congress did want covered by the ADA. So they -- impairments like diabetes and cancer, heart disease, HIV, now it''s much easier to sort of make a fit with the definition of disability by using Major Bodily Functions. And we''ll see that in the cases that we talk about today. The first case you''ll see -- oh, one other point I wanted to make is that not only are the courts interpreting the ADA itself, but courts are also referencing the EEOC''s notice of proposed rule-making. Right, remember they issued that notice of proposed rule-making in 2009, and people submitted comments. But it hasn''t been finalized yet. Interestingly, even through Congress -- excuse me -- the EEOC, hasn''t finalized these regulations, courts are already referencing them and relying on them. And so it''s -- it will be interesting to see how different the final regulations are from the proposing regulations, and whether that changes anything in the Court interpretations. But the Courts aren''t waiting for the EEOC to finalize it, they''re already referencing them in their court decisions. So the first case is the Gill case out of Massachusetts, and that involved a gentleman with monocular vision. And he sought to return to work after surgery, and ultimately he brought suit under the ADA when he wasn''t allowed to return to work. And his termination occurred the day after the ADA Amendment Act''s effective date. So -- so he was -- the ADA Amendment Act did apply. And the Court found he did have a disability under the ADA, and that even though there had been previous cases, including a Supreme Court case that found that monocular vision was not covered by the ADA. The Court said here under the new ADA Amendments Act and the broader view Congress wanted courts to take, he was covered under the ADA. And they also referenced the proposed regulations in that case. They also indicated that the employers claimed that the employer took adverse action against him because of the fear he would injure himself in the work place, also created a claim for Regarded As, and you might remember under the ADA Amendments Act, Regarded As is a lesser standard now. You no longer have to show that the person is substantially limited in a major life activity in order to have a Regarded As claim. And so I think this case is helpful in showing that disabilities that weren''t covered before under the actual or present disability will be easier, monocular vision, and that also Regards As is going to be easier to prove as well. The Horgan case is a case out of Illinois, it was decided this spring involving a gentleman with HIV, and he was terminated and claimed it was discriminatory termination, and he was asked impermissible inquiries about his disability. And the Court found that he did have a disability and found that under the ADA Amendment Act, they relied upon that Major Bodily Function category we talked about, saying his functions of his immune system were substantially limited. The Court also, again significantly I think, not only looked at what Congress said in making its ruling here, but they also looked at what the EOC said in its proposed regulations and found that the EEOC had said that HIV will consistently meet the definition of disability. And that was in the proposed rule making. And I think if that stays in, more and more courts will be looking at this. Interestingly, when we had a lot of pre-ADA cases, pre-ADA Amendment Act cases, some of the courts were reluctant to rely upon the EEOC. But when Congress passed the ADA Amendment Act, it said expressly that the EEOC had jurisdiction to interpret the definition of disability. And so what we''re seeing in these initial cases is courts readily looking at what the EEOC has said. And that''s a real difference from what some courts were doing before. So I think that''s going to make -- again, much easier for some people to be covered under the ADA than it was before the ADA Amendment Act. Most recent case that''s listed here is a case out of Indiana from August, the Hoffman case, and that''s a case involving an employee with cancer. His cancer was actually in remission at the time he left his employment. And the employer claimed that, well, the fact that it''s in remission means that it''s not going to necessarily be covered by the ADA. In actuality, Congress anticipated this problem, and in the text of the ADA Amendment Act itself talked about that, impairments that are in remission can still be considered a disability under the ADA. And it explicitly said an impairment that is in remission or episodic is a disability if it would substantially limit a major life activity when active. And the Court found that that, that the plaintiff had met that here. And they also again relied upon the EEOC''s proposed regulations, which explicitly listed cancer as an example of an impairment that was episodic or in remission, but none the less could be an impairment and consistently meet the definition of disability. So again, the courts are looking at the EEOC''s proposed rule making, and finding that people have disabilities. So what we have here is most -- the -- a small number of cases that we''re seeing, but the cases we''re seeing thus far are taking a much broader view, as Congress had intended. And I think this really -- until something really strange happens, I think this is a really good indication of where the courts are going to be going. And they''re going to be taking a broader view. And impairments like cancer, monocular vision, even HIV, that some courts were finding didn''t have -- didn''t meet the definition of disability are going to much more easily meet that definition under the ADA Amendment Act. The other major issue that''s been coming up under the ADA Amendment Act has been the applicability of whether it''s being applied retroactively. And that means do you apply the ADA Amendment Act to conduct that was done by an employer prior to the effective date of the ADA Amendment Act. As I mentioned before, the effective date is January 1 of 2009. So the question was do you hold an employer responsible using the standard under the ADA Amendment Act for conduct prior to January 1, 2009. Generally, the Supreme Court and other courts have held that you do not apply statutes retroactively. And the meaning -- the reasoning behind that is it''s just unfair generally to hold a defendant liable for something that''s articulated after the alleged violation occurred. And so what you see in Section 3 here is that all the courts that have looked at this issue, and eight of the twelve circuit courts of appeals that have looked at this issue have all held that generally the ADA Amendments Act will not be applied retroactively. Some courts, even though they''re not applying it retroactively, are referencing the ADA Amendment Act and its rulings by saying it helps to understand Congress''s intent. So they''re looking at the ADA Amendment Act but not necessarily applying it in a retroactive way. The exception though that''s listed in the hand out is a case out of the sixth circuit called Jenkins. And the reason it''s an exception is it applied the ADA Amendment Act retroactively in case that did not involve money damages. Generally, the Supreme Court has said that when the -- there are situations where the case doesn''t have money damages you might be able to apply a statute retroactively when it''s for future conduct that you want the definite to do. So in this case, you had a gentleman who was seeking additional time on a medical licensing examination, and he had been denied that request for accommodation prior to the effective date. But he was seeking an accommodation after the effective date of the ADA Amendment Act. And so the question was is the licensing authority required to provide that accommodation in the future for conduct -- the denial it made prior to the ADA Amendment Act. And the Court said yes, they do. Because this is different. It''s -- the Supreme Court present has allowed statutes to be applied retroactively when the only remedy they''re seeking is prospective or future injunction, not involving money damages. The fact that the employee was also seeking attorney''s fees didn''t make it a money damages case because the Court said that attorney''s fees are collateral to the main cause of action. So generally, the rule is that the ADA Amendment Act is not going to be applied retro actively. But if you have a case that has only injunctive relief, the Jenkins case indicates that may be a case that is applied retroactively. So I think what we''re going to see is courts taking a broader view of the ADA definition of disability, more people being able to proceed with their cases. And as a result, I think we''re going to see litigation in areas that we didn''t see as much litigation as before. So many cases were dismissed based on the definition of disability not being met, that there wasn''t a lot of litigation on other ADA issues sometimes. And so now that more people are going to be able to proceed with their ADA case, I think we''ll see litigation in some other areas, such as undue hardship or qualified, reasonable accommodations, those kinds of things. And we''re going to have a webinar on this exact issue, it''s pretty far in the future, it''s September 21 of 2011, it''s the last one we do in the series. But if you''re thinking about in the future, trainings you want to participate in, it''s going to look at both how the ADA Amendment Act is being interpreted. So building on these three cases we talked about already, and then also looking at issues that the courts are looking at more intently, now that more people are being covered by the ADA. So we may have some more decisions on undue hardship or other things like that. And we''ll talk about that in September. So moving onto the next issue, we''re going to be focusing a little bit on essential functions and qualify it. Again, this is an area where we may see more litigation now that the ADA Amendment Act has been passed. And as you recall with central functions and qualified -- excuse me -- for qualified, you have to really meet two things. First, and you''ll see the bullet points there. You have to have the requisite skills, experience, education, licenses, and then secondly you have to be able to perform the central function of the job either with or without a reasonable accommodation. And it''s the second bullet point where we see most of the litigation. And what I would really -- for those of you who are employers on the phone today, since we probably are going to see more litigation on essential functions and qualified because of the ADA Amendment Act, I think this is a great time to re-look at your job descriptions. Because that''s often-time a good piece of evidence you can use in determining whether something is an essential function or not. And a lot of times job descriptions come out of date or they don''t apply to how work is being applied in the work place and actuality. Sometimes things are thrown in just as requirements without really attaching it to the job, like the person has to lose 50 pounds or something like that. So because there may be litigation coming up more frequently on this issue, now is a great time to look at your job descriptions and make sure they''re accurate and change them if they''re not. So a lot of the cases I think we''re seeing and we''re going to see more of is whether particular issues in the work place are essential functions or not. Because you remember, essential functions are what you need to show to be qualified. And also employers are not required to remove essential functions as a reasonable accommodation. And so we have an example of a few common essential functions or functions in the work place. And looking at whether they''re essential or not. The first one is the Reveal case, looking at whether a rotating shift is an essential function or not. And in this case, you had a gentleman with mental illness who took a leave of absence and when she -- it was actually a woman -- when she returned her position had recommended that she only work the day shift and not work a rotating shift, that would be better for her, for her disability. And although the employer temporarily allowed her to do that, ultimately they -- the employer decided it would be a burden on the other managers to allow her to continue that indefinitely. And so they required her to do the rotating shift. And ultimately she was terminated and sued, in stating that -- that she shouldn''t have been -- she should have been allowed to work on the day shift only, and the employer countered in saying well, she''s not qualified because rotating shift work is an essential function. And the Court actually agreed with her, and found that it is an essential function and that they were not required to remove this as an accommodation to her. And the fact that the employer temporarily allowed the employee to do that didn''t mean it wasn''t essential. And they actually looked at the job description, like I said before, and the collective bargaining agreement, and both of those documents indicated that a rotating shift is an essential function. And the employer was applying this consistently. One thing that often times trips up employers is that they sometimes make exceptions to things that are in the job description, collective bargaining agreement. Then that undercuts the argument that it''s not an essential function. So if they had allowed other employees not to work the rotating shift and then tried to enforce that against the person with disability, that would be a much harder argument. The Vanderbrook case is a very common case, scenario, that comes up, involving people who are terminated if they are not able to meet the attendance policy. This involved a gentleman who -- his disability was alcoholism and could not meet the attendance policy requirements. He had failed to provide sufficient evidence that he was going to be coming into work. And so they found he was not able to perform the essential functions of the job, particularly his meeting the attendance requirements. And the Court up held his -- the employer''s decision, that he did not meet the essential functions here. And this is pretty common, where courts -- as long as the employer enforces the attendance requirements consistently, often times courts will up hold this. There wasn''t any really -- reasonable accommodation analysis here. So one thing that can happen in these situations is the person is having a hard time meeting the particular attendance policy, but you could modify it say, have the employee start a little later and work later. And they could still meet the attendance requirements of working a particular number of hours a day. But maybe just modify it in how its done. And so that may have been an accommodation that the employee should have sought. We don''t have all those facts to know, but it''s something to consider in these kinds of cases. I''m not going to talk about the Fiumara case, it''s a common issue, just saying if there''s a licensing requirement that''s often found to be an essential function of the job as well. Something we''re seeing a lot of is the whole issue of employers using what are called 100% healed policies. And these are policies that say in order to be deemed qualified to do the job when you take a leave from -- of absence and you return to work, you have to show that you have no restrictions, that you''ve been quote unquote, healed. Which is -- you know, I''m not really fond of that term, but that''s the term that''s used. And courts have generally favored this type of policy because they find that it really ignores the reasonable accommodation concept. It''s a very rigid concept and doesn''t -- it''s very inconsistent with the ADA. In the Powers case, I think it is a very typical fact scenario, where the courts have been disfavoring these 100% healed policies. This is an employer who, when an employee was trying to return from a back injury and the Court -- and he had some medical restrictions, the employer said to return you have to show that you''re completely free from any medical restrictions. And ultimately, he filed -- the employee filed suit and the Court -- the employer claimed that he wasn''t qualified because he didn''t -- he couldn''t return without restrictions. And the Court found that it -- it appeared that the employer was engaging in per se disability discrimination by requiring people to be 100% healed to return to work and that they were precluding the opportunities for reasonable accommodation and individualized assessment. So I think any employers out there that have these types of policies, I think you have them at your own risk, because courts have been very adverse to agreeing to these kinds of policies, and find that they violate the ADA. And the Equal Employment Opportunity Commission has taken a pretty aggressive stance on these policies, you''ve got a couple of examples. One is the case they brought against Sears Roebuck that was settled in February of this year. A very high if not highest if not the highest verdicts in an EOC case, an ADA case, where $6.2 million was approved by the Court to a number of employees, 235 employees, and they had all been terminated because Sears had a policy if you couldn''t return to work after your worker''s compensation leave then you were automatically terminated. And the Court found this is an overly inflexible leave policy that was inconsistent with the ADA. And then you see that the EEOC has filed a new case against Supervalue, again having one of these rigid policies, having no accommodations, no restrictions, rules, when people are trying to return to work. They claim that it violates the ADA. And that case is involved -- ongoing litigation. So there''s no decision there. The next issue we wanted to look at is the issue of reasonable accommodation. And this is other than definition of disability, this is probably where we''ve seen the most ADA litigation, and I think we''ll just see more of it now that more people are going to be able to meet the definition of disability. And the issue that has been most commonly litigated in reasonable accommodation appears to be the issue of interactive process. And you might recall the interactive process is something that employers and employees should engage in when people ask for reasonable accommodation. So there''s a discussion then trying to figure out really how to figure out effective accommodation, that it shouldn''t be just sort of a quick decision made by an employer, without really figuring out what''s going on and talking to the person with the disability or talking to their physician to find out really how to find an effective accommodation that works for both the employer and the employee. Generally, courts have been really supportive of employees and cases where the employer is not engaged in an interactive process. And you''ve got examples of several cases in that front. The Lowe case is an example where a woman was seeking accommodations in the school setting, she was a teacher. And the employer basically blew her off for about four months and didn''t respond to her request. And then right before school started they did have kind of a perfunctory meeting, but they didn''t really have the interactive process, even though they had a meeting. So a meeting itself isn''t enough. And the Court found they didn''t engage in the interactive process, and therefore be reason to believe they violated the ADA. The Lafata case right below it is another case where an employer -- when the person wanted to return from leave had sought some accommodations and basically because the employer had filled her prior position, they identified a lesser job and said you know, take it or leave it. And the Court said you know, take it or leave it is not interactive. That''s a one-way conversation. And you need to have an interactive process to determine whether or not that''s really the only position that person could do, and what accommodations did they need, what other positions, if you made accommodations that would work better and that wouldn''t be of a lesser status and lesser pay grade. So the -- the employer lost here, for not engaging in the interactive process. And then a really recent case, from August, that the EEOC brought I think talks -- another issue on the interactive process that raises the issue that it''s an ongoing process. The fact that you engaged in an interactive process once doesn''t mean you''ve met all your ADA responsibilities. This was the case involving a gentleman who was deaf. And the employer engaged in interactive process and agreed to provide him with an interpreter, sign language interpreter at monthly meetings. The employer then made a subsequent request and said you know, I could really use an interpreter also at these weekly meetings that we have, and the employer denied that request and said okay, I''m going to give you is -- somebody''s going to take notes and give you the notes after the meeting is over. And the employee said that''s not really effective communication, I can''t really participate that way, reading notes afterwards doesn''t work. Ultimately, he filed suit for the employer failing to accommodate him and the Court said that they had failed to accommodate him, they haven''t engaged in the interactive process by coming up with a solution that didn''t really work, and the Court wanted to emphasize that the interactive process obligation continues. Just because you''ve done it once, you might need to do it again if the employee asks for a different accommodation, or maybe something -- the current accommodation isn''t working or some new accommodation is needed. And so this is a good case for indicating that the interactive process obligation is not a one-time only thing, but does continue as different things arise in the work place. The next case on the Fulton is -- I just wanted to indicate that the interactive process has been applied outside of the Title 1 context. I don''t see this frequently, but I just wanted to point out this is -- involved a woman who had MS and her husband was incarcerated. And because of her MS she couldn''t travel to where he was incarcerated. Called the hub facility, and so she had asked for him to be transferred to a different facility and the state said we can''t do that, our policy is inmates stay at this hub facility for at least two years. And so she sued under Title 2 in Section 504, the Rehab Act, and claimed that they didn''t -- they failed to accommodate her. And the Court said yes, the state should have engaged in interactive process to identify what accommodations might have worked, other than transferring him as she had requested. It''s just -- so we may have some state officials on the line here today, and just wanted to emphasize that the interactive process obligation has been applied outside the employment context. There have been some cases where the employers have not engaged in interactive process and still won the case. And these are cases where courts ultimately find that even if the employer had engaged in interactive process it would have been futile because there was no real reasonable accommodation, no effective accommodation that would have been found, even if they had engaged in interactive process. So you''ll see the Richardson case and other cases there that courts found that even though they didn''t engage in interactive process, it wasn''t fatal to the employer because there was no actual accommodation that would have been reasonable here. And I think it''s important to know about these cases, but I think employers should be careful not to rely too heavily on these cases, because you never know -- you know, you may think oh, it''s futile to go through this process because there''s no accommodation. But once you engage in the interactive process some things may come up that you''re not aware of or had thought of. So when you talk to the employer, use doctor or talk to the employee directly , you may learn some things and identify an accommodation that you wouldn''t have thought of otherwise. And so while these cases have excused the employees or employers or said that they''re not liable because they didn''t engage in the interactive process, I still think from a best practice stand point, employers should engage in interactive process, both legally as well as from a practical standpoint. And then the Gratzl case is just an example that the interactive process is a two-way street, and employees as well as employers have to do that. And if it''s the employee''s responsibility -- failure to engage in the interactive process, they can lose the case as well. Another common area we see litigation for reasonable accommodation is the issue of leave, and generally courts have recognized that leave can be a reasonable accommodation, but where employees have not been successful is when they have requested indefinite leave and they have given the employer no indication of when they are going to return. And employer -- courts have been much more differential to employers in those situations saying that really -- it really puts the employees -- employers in a bind. And so they''ve been less willing to find reasonable accommodations when employees are only -- have only asked for indefinite leave as opposed to a more specific leave. So you''ve got some examples here of those cases. The -- the Verrocchio case is a case where the person had requested nine months of medical leave, and even after nine months they were still unable to work, they were fired by the employer who had sort of a rigid policy saying if you can''t return when you say you''ll return then you''re out of here. And the employee filed suit. And the Court said that additional leave may be a reasonable accommodation, and that would allow them to perform the essential functions of the job. So just because they don''t come back exactly at the time they have been designated that doesn''t mean the employer is free to terminate the person. So you''ve still got to engage in the interactive process even after that time and try to figure out when will the person is going to come back, even if it''s not the specific time they had identified originally. Because you know, disability is unpredictable. You never know how it''s all going to play out, whether it''s rehabilitation or healing or medication you''re taking or whatever it might be, it may not actually turn out to be resolved within the period of time that the employee or the employee''s doctor originally designates. Mayhew case I think is an interesting case for a couple things. One is they first requested an accommodation for leave to care for their son with a disability. And the Court said reasonable accommodations are for employees, not for you to care for your child. The employee may have wanted to look at family medical leave as an option for that. But then she asked for an accommodation for herself for leave, for her own heart condition. And she requested what''s called work when able schedule, which meant she would work when she could, and when she couldn''t, she wouldn''t. Because her heart impairment was such that it was sort of unpredictable and she needed intermittent leave. And courts haven''t necessarily been that receptive to these types of accommodation requests, but they were here. And the reason was they looked at the specific job and they said for this specific job for T-Mobile, customer service, attendance is less significant than with other jobs, because there are so many different people who are doing this, and unpredicted absences, the Court found, really had little or no effect to the defendant''s productivity or call center. And therefore, they allowed this more mushy, so to speak, accommodation request because of the way it applied in this particular work setting. But if you apply similar effects like that to work setting that isn''t necessarily like T-Mobile, in the Colby case the Court found that somebody who was taking this kind of time which was unscheduled and unpredictable was not a reasonable accommodation that could be provided. And they ultimately decided this was considered indefinite leave. And similarly, in the Crabb case, the Court found that this person who was seeking leave after their FMLA had expired was really seeking indefinite leave and had given no indication whether they would be able to return to work. So I think for employees, if you can get your doctor to identify as best they can some time frame when they expect you to return, you''re going to be in a much better position, and recognize that you can''t get an exact timeframe, employers should recognize that. But at least you have a goal for both sides to work with, and then you can evaluate what''s happening once that time may pass. I''m not going to go into specific cases, but there are a couple cases listed here that expand on the general rule that employers are only required to accommodate known disabilities. So we''ve got a couple of cases where employers didn''t know the person had a disability and were just -- they heard the employee complaining about how they were feeling, but they didn''t identify they had a disability themselves. So both in the Smith case and the Keeler case, the courts found the employer didn''t know the person had a disability, and therefore was not entitled -- was not required to provide the reasonable accommodation that had been requested. Also the general rule, Section 4, that employers are not are not required to create new positions as reasonable accommodation. Courts have been consistently up holding that principle as well, and you''ll see that in the Fink and the Johnson cases. What raises a more interesting issue I think is Number Five, about whether employers have to provide the preferred accommodation or not. And the general rule is employers is that employers are only required to provide what''s called an effective accommodation, not necessarily the preferred accommodation. Employers, you know, the EEOC and their enforcement guidance talk about how employers should talk to the employee through the interactive process and give consideration to the employee''s preference. And if that''s effective as well as the preference, you know, employers should consider that strongly. But ultimately, they only have to provide an effective accommodation. And there''s a link there in your hand out to the EEOC guidance on this issue. And you''ve got a couple of interesting cases that look at this issue. The first one is the Edwards case. And in that case you had a woman who was a teacher who as an accommodation she was seeking a full time assistant in the classroom. And she had identified all the different things that this assistant would help her with. And the school ultimately ended up providing her with accommodations that they felt with effective, but weren''t necessarily a full time assistant. They were just some changes in the work place to assist her. And ultimately, she was fired and sued under the ADA. And the Court found that -- found that the employee''s request was not a reasonable accommodation, that the accommodation that the employer had provided was effective and therefore they complied with the ADA. And the Court said even though a full time assistant may have been more efficient and may have been more preferable to the plaintiff, the employer is not obligated to provide the preferred accommodation as long as they can show it was effective and the other accommodations they had offered to provide the Court found were effective, and therefore they make their -- met their obligation under the ADA. The next case, the Ekstrand case raises some different issues, and that is what happens when the preferred accommodation also is the medically necessary accommodation. So in the ex-tran case, you had a woman, again I teacher, who had what''s called Seasonal Affective Disorder. And she had requested a number of accommodations, including the accommodation that she be in a classroom that had natural light. She was in a classroom that had no windows, and there was a classroom that actually had windows, and a teacher was actually willing to switch with her and for whatever reason, the school was not willing to make that change and provide her with that accommodation. It provided her with other accommodations, but not that one. And ultimately, she became ill and had to leave, and she had requested this accommodation, the employer refused to provide it. Before a month or two after she requested that accommodation she then provided the employer, the school, with a doctor''s note that explained that for people with Seasonal Affective Disorder, natural light is very important and really tied the accommodation request which wasn''t necessarily an intuitive request to the disability and why it was so important for her to have access to natural light as a result of this particular disability. And the Court said that prior to getting that -- that doctor''s note, the employer was not responsible for failing to provide reasonable accommodation. But once they got that, they said it''s no longer about what her preference is, it''s about what''s medically necessary to accommodate her in the work place. And it shifted from being her preferred accommodation to a medically necessary accommodation. And once the employer was on notice that it was medically necessary, that changed things. And so the Court found that the case could go on, that the employer may have violated the ADA by not providing the accommodation once they learned of the medical necessity of her having an accommodation of a classroom with natural light. Another issue that has come up in some cases is what happens when the employer removes an accommodation they''ve already provided. Generally, the -- the courts have found that there needs to be some sort of justification for the removal of the accommodation. Like maybe the person''s disability has changed and they no longer need the accommodation, or it''s proven to be an undue hardship once you put it in practice. And so the Livingston case is an example of when you have somebody having -- removing an accommodation. This is a woman who worked as a wine steward, and she had a vision impairment. And as a result of her vision impairment she had challenges in walking and driving safely when it was dark. So she requested a modified schedule during the fall and winter months when the days are shorter that she not have to work until it got dark so that she could drive home and walk home safely. And they provided that the first year. But when she requested that the next fall they didn''t provide that. And they didn''t show any undue hardship as to why they removed it. In fact, her wine sales were actually increased during the modified schedule. And ultimately, the Court found that this removal was a violation of the ADA. They hadn''t shown that it was undue hardship, and it had been an effective accommodation. And what was interesting also about this case, the Court talked about that employers have a duty to accommodate employee''s limitations in getting to and from work. Not many cases have said that, most courts have said you know, the employer''s responsibility under the ADA really starts once they come to the work place. And they''re not responsible for accommodating people in getting to work. But the ninth circuit found that was the case. And so this accommodation was something that they should have provided, and that the fact that it had been effective before and not caused an undue hardship, and actually she had increased productivity only gave even more reason why they shouldn''t remove the accommodation, because it was an effective accommodation. But there are courts going the other way, especially when they find out what was provided before wasn''t necessarily an accommodation but an employer being generous and going beyond what''s required by the ADA. You see the Hill versus Verizon case, where they had accommodated an employee and not requiring him to work on ladders, which was something he didn''t -- wasn''t able to do. And they allowed him not to climb up on ladders for a while. But ultimately required him to do so. And said the fact that they had provided that before wasn''t an accommodation, they were just basically being generous, doing him a favor, and ultimately they found that climbing on ladders was an essential function and he couldn''t do so because of his weight. And ultimately he was found -- justified in being terminated in that they hadn''t provided an accommodation before, they just provided this service or they allowed him to work this way as a favor. Another common thing we see in reasonable accommodation is working at home. You probably are aware, but if not there''s a site there to an EEOC fact sheet that talks about the EOC''s position on working at home. Saying that employers aren''t required to have a telework policy, but if they do, they need to allow people with disabilities to participate in that, modify their policy as necessary. And if they don''t have a telework policy, they need to consider that as a possible accommodation for people with disabilities. And you know, these are very fact-specific on what''s reasonable for a particular job, whether working at home is or isn''t. But I think this would move even further into the technological age, where more people can access their desktops from home and people are working remotely, this issue is going to continue to come up. And you see a couple cases where they go in different ways. The Kiburz case, where the Court found that it was not reasonable to allow her to work at home or him to work at home, because of the nature of the job needed to be working and providing technical support to customers and colleagues and attending meetings. And it wasn''t effective. Working relationships couldn''t be built if he wasn''t in the work place, they found that request was not reasonable. And then the Graffius case, they found that working at home was reasonable. This was a case where they had allowed her to work at home and then removed the accommodation like we were talking about before. And had not found there had been an undue hardship by her working at home before. And so removing it wasn''t something that was justified here. And they found that it was reasonable and there was no defense of undue hardship. So she was allowed to continue to work at home by the Court. Real quickly, there''s a case reference that shows the exception to the general rule. The general rule is that accommodations typically are required. You are required to make an affirmative request for an accommodation, but if the situation demonstrates itself that the accommodation is obvious and the employer or the entity should have known that an accommodation was necessary, it should be provided. The Kutrip case is an example. Outside of the employment context where a prisoner -- it was obvious what accommodation he needed, he needed an accessible shower. And the prison should have provided it. The Court said even though he didn''t request it. And then the last reasonable accommodation issue that I just want to reference is this undue hardship concept we''ve been talking about before. And I think, like I said before, we''re going to see more and more of these cases under the post-ADA Amendment Act decisions. But the Moore case that''s listed here is a good example of an employer doing it right. A lot of times employers say well, that would be an undue hardship, we''re not going to provide you with that accommodation, and then they just sort of do a knee-jerk reaction. But in the Moore case, the employer found that the indefinite leave that the person was seeking would be an undue hardship, and they actually drafted a memo that supported the position, analyzing the economic impact on the company if they provided the accommodation that had been requested. So the Court found it was an undue hardship. So I would just recommend for employers, being asked for an accommodation, if you think it would be an undue hardship, following the lead of the employer here in the Moore case would be a good idea. The next issue where we''ve seen some litigation is on direct threat. And people may recall that direct threat is when there''s a significant risk of substantial harm to the health or safety of the person with the disability or others in the work place that can''t be reduced by a reasonable accommodation. And the ADA and EEOC and case law is clear that the decision has to be based objective medical evidence and individualized assessment, and can''t be based on stereotypes or internalistic attitudes. Generally, the courts have been pretty differential to employers when there is a threat of work place safety. And you''ve got a couple of examples in the Mayes case and the Wurzel case, where you had employees who were having difficulties in the work place, the Mayes case involving someone with epilepsy, who had 15 different seizures and had not only injured themselves, but also had injured co-workers involved -- one co-worker was actually bitten during a seizure. And the Court held that this work place safety issue was sufficient to -- to allow the person to be terminated, based on a direct threat. And that there was really no accommodation that would work. They proposed the accommodation of avoiding going near the plaintiff when she had seizures, and they found that really wasn''t a reasonable way to work this out in the work place. And then the Wurzel cases, somebody was having a lot of difficulties with their heart condition and having a lot of spasms in the work place and they found that the -- there was a likelihood of harm in the work place and that it was an imminent threat, and therefore was a direct threat. The Rojek case though is a little bit different take on it, and the plaintiff won. Which I wanted to point it out, and that''s a case involving somebody who was blind, who wanted to be a social worker for a mental health facility and was required to make occasionally home visits. And the -- the employer here was concerned that -- for the employee''s own safety, and said that they would be required to go into dangerous neighborhoods and houses in poor condition, and being blind the employee was at risk here. And the Court rejected the arguments, said you''re just basing this on stereotypes. And she''s been working as a social worker for 25 years, and has developed non-visual ways of investigating abuse effectively as well as keeping herself safe. And therefore the Court allowed this case to continue, finding that this was not based on individual assessment, it was really based on generalizations about people who are blind trying to be social workers. And so the Court allowed the plaintiff to continue with that case. When there''s threats in the work place or perceived threats courts have been pretty differential. The Bodenstab case and the Calendriello case, I think I''m pronouncing that right, were both cases where there were threats in the work place. The person hadn''t actually committed any violence in the work place, but the courts found that there was sufficient threats to found the person to be deemed a direct threat, and therefore terminated by the employer. The Hussey Copper case is a good example of actually requiring objective and individualized medical evidence. This was a case involving a gentleman who had tested positive for methadone that they were taking in response to their -- their substance abuse disability. And the employer''s physician had recommended that the person not continue doing the safety-sensitive work because of the medications he was on with the methadone, and ultimately the Court found that they did not meet the standard of direct threat, because the employer''s physician''s determinations were based on generalizations and based on reviewing literature rather than talking to the person with the disability themselves about their reaction to methadone and their side effects, or talking to the person''s doctor and really looking in the employee''s files as well. And so employer''s doctors obviously can be involved in the determination of whether somebody is a direct threat, but this case is the case where if you do use an employer doctor, that doctor needs to do more than just look at medical literature and make generalizations about a person. They need to look at the person themselves, their file, talk to them or their doctor to really make a more informed decision. The Doe case is also a case where the -- the defendant did not rely upon objective medical evidence. This was a case outside of the employment context, involving a kid with HIV who wanted to go to camp and the nurse who was responsible for reviewing applications determined that he would be a direct threat. And this was based on her assumptions about HIV rather than the realities about HIV and how it''s spread. And so the Court found that even though she -- the nurse had a good-faith belief that there was a threat, that wasn''t sufficient because it wasn''t based on objective medical evidence. And so therefore the direct threat defense was not permitted. And then just kind of a weird case that was decided where this year Ive never seen, where a service animal was deemed a direct threat. I think this is not going to be a typical case, but just thought I''d point it out. And this was a case involving somebody who brought their service animal to the hospital. And this hospital was pretty good about allowing service animals into the hospital and actually allowed this particular animal in. But this animal was apparently not very well trained and very strong odors, and was not well behaved and was getting in the way and there was concerned about spreading infection because of the fact that the dog was not well taken care of. And so ultimately they found the dog itself was a direct threat, which is the first case I''ve read about, where there''s a direct threat involving an animal as opposed to an employee with a disability. So it hasn''t been extended beyond people with disabilities. The next issue just wanted to briefly mention, retaliation. We''re seeing a lot more cases involving retaliation and we think that may even grow further as the ADA Amendment Act cases come down. Generally, most courts have found that you don''t have to be a person with a disability to bring a retaliation claim, you don''t have to prove disability because retaliation is under Title 5 as opposed to Title 1 of the ADA. And so the trial case is an example of a couple of caregivers that were allowed to bring a retaliation claim, even though they don''t have a disability themselves. You also have to show that there''s an adverse action to support your retaliation claim. And usually the adverse action would be a person is terminated or they''re demoted. And the Mongehan case is an example of a person not necessarily being terminated or demoted, but still having adverse action in the work place to support a retaliation claim. In that case, the employer had posted her equal employment opportunity complaint on the work intranet, and also had increased her workload. And so that was deemed sufficient enough for an adverse action to allow her to continue with her retaliation claim. You also have to show that the employee is engaged in a protected activity. And usually that would be something like filing with the EEOC or requesting a reasonable accommodation, and the Roth case is really interesting, because it involves somebody who filed an ADA case outside the employment context, but it ultimately impacted his employment. This is a gentleman who has quadriplegia and had sued a sports facility for being inaccessible, and after the suit the sports facility ultimately decided to close, and said the reason they''re closing is because of the litigation. And the person who filed the suit originally worked for a disability advocacy organization, and that advocacy organization received a lot of negative publicity because of the litigation that the employee had filed on his own, but because he was still associated with the agency it was giving a lot of negative publicity to the agency. And then he was terminated shortly thereafter. And so the Court held that the facts involved here created a trial-able issue as to the whether the plaintiff was terminated for engaging in his protected activity of filing an ADA lawsuit outside the context of the work place. And the Court allowed that to proceed. And then the -- the other major issue that comes up in retaliation cases is whether there''s what''s called a causal connection between the exercise of the protected activity like filing with the EOC and the employee''s adverse action, like being terminated. And usually what they''re going to look at is whether or not there''s -- the time between the protected activity and the adverse action. And if it, in a short period of time between those two events, there''s more likely to find a causal connection. And so an example here, the Reinhardt case involves a teacher who had been advocated on behalf of a student with a disability who wasn''t getting the education services she needed. She filled out a complaint with the state education department and she ended up getting her case load and salary reduced. And ultimately, the Court found that there was a causal connection between what she had done, advocating for this kid with a disability, and filing this complaint with the state education department and the adverse action that happened, because there was a close proximity between the time of when those happened. And then I also cite the Roth case, which I just talked about, involving the guy who filed against the fitness facility. There was a close connection between the time when he filed his ADA lawsuit bad publicity, and then when he was terminated. That there was a causal connection that was allowed to go. The last issue that''s listed here that I''m not going go into is just whether or not you can get money damages under retaliation claims, and the courts are split. Youll see there''s a listing of case that''s say you can get money damages, and cases that you can''t. The issue that''s important here is not only whether or not you can get money damages, but if the case is deemed not one that you can proceed with, with money damages, you''re also not going get a jury trial. So if it''s important to you to have a jury trial, and you''re deemed not able to get money damages on a retaliation claim, you not only lose your money damages, but you lose your right to a jury trial. I want to shift to a few more other issues before we open up for questions. One is an issue that I''ve rarely seen litigated, but I thought was interesting to talk about because it may come up in another context, you may not be aware of it. And that''s what''s called the ministerial exception. The ministerial exception. The ministerial exception generally allows religious entities to give preferences in employment to people of particular religions and require that employees conform to religious tenants of the organization, and that''s -- you can find that in the ADA. And that provision of the ADA is rooted in the first amendment, freedom of religion. And the case that''s cited here, the employer tried to raise this ministerial exception and the Court didn''t buy it. This was a teacher who worked for a religious school and she had the disability of narcolepsy and took an extended leave of absence and then she was cleared to return to work, but the school didn''t want her to return to work, they were concerned she could jeopardize the safety of students because of her narcolepsy. And all at once she was terminated. So she sued under the ADA against the religious school. And the religious school said you can''t sue us under the ADA, we''re exempt from the ADA because of this ministerial exception. And the Court here ruled in favor of the teacher and found that the ministerial exception did not apply. They said when you''re looking at this ministerial exception you need to look at a couple of factors. One is, is the employer a religious institution, and that wasn''t disputed. And the second issue is whether or not the employee is a ministerial employee. So what you look at is whether or not they''re engaging in religious activities within the context of the employment or not. And the Court here said that the overwhelming majority of courts have found that -- that parochial school teachers who teach primarily secular subjects, non-religious subjects, aren''t going to be considered ministerial employees for purposes of the exception. And in this particular case, they found that the plaintiff out of her 7 hour day, she spent about 6 hours and 15 minutes teaching non-religious secular-related topics. And only 45 minutes involved in any kind of religion. And so they found her to be outside of the context of a ministerial employee. And therefore the employer was not entitled to raise the ministerial exception. Another issue where we don''t see a lot of litigation but we saw a couple of interesting cases is association discrimination. You may recall that the ADA provides that not only are people with disabilities protected with the ADA, but also because you are discriminated against because you associate with somebody with a disability, and are treated differently because of that association, you can be covered by the ADA. You''re not deemed a person with a disability, not entitled to reasonable accommodation, but you are entitled to protection if you are treated differently because of your association with a person with a disability. And the Loeffler case is a real twist on that typical scenario. Usually it''s -- often times you''ll find people, employers who are terminating or discriminating against people because of what''s happened in the work place resulting from their kids with disabilities. But here in the Loeffler case, it''s actually the adult who has the disability and the kids who don''t have a disability. The -- and this is outside the employment context, this is a Title 3 case. This is somebody who had -- actually Title 2 case involving a state hospital in Section 504. This was somebody who had heart disease and also was deaf, and they -- the hospital was not providing an interpreter. And so the -- the cardiac patient was using his minor children who aren''t deaf to interpret for him because the hospital was not providing interpreters, and they needed to know what was going on. And they were just relying on his children to provide the interpretation, sign language interpreting, he needed. And so the suit was filed under the ADA and Section 504. And they included a claim of association discrimination on behalf of the minor children. And the Court held that the children had standing, they had the right to bring this association claim because they had suffered emotional harm. They had emotional harm from having to miss school, to help out their dad at the hospital, they were damaged because they had to be confronted with their father''s illness in the context of the hospital and also trying to interpret and communicate complex medical information was damaging to them. So even though the kids themselves didn''t have a disability, who needed the interpreter services, the Court found that the hospital''s failure to provide the service to the parent harmed the kids. And so they had a cause of action for association discrimination. There was a dissent, a contrary opinion by one of the judges in this case, and they said you can''t have association discrimination when the children aren''t deprived of services, it was the person with the disability who is deprived of the services. There''s no service denial here. But the majority didn''t agree with that, and said that, you know, the damages they incurred by having to do this for their dad was -- was sufficient for them to continue with their case. So kind of a twist on the association discrimination issue. The Sandford case, next, right after that case, is more of a typical scenario, and this involved a person who had a disability and their employer provided insurance for employees, and she was a person who had a kid with a disability, and the employer knew about that and she claimed that the insurance plan that was offered for other employees wasn''t offered to her because of her son''s disability. And she had heard comments by her supervisor about there being too many medical issues and personal problems in her family to having to leave a lot, and so ultimately she was terminated for excessive tardiness, but in addition to her claim for wrongful termination, she also made a claim for association discrimination based on the failure to provide her with insurance and access to this insurance program because of her association with her child with a disability. And the Court agreed, and said that she -- that she had produced sufficient evidence, that she had told her supervisor about his disability, and that the supervisor told her that no insurance was available, even though other employees were getting it, who did not have family members with disabilities. So she had raised a sufficient claim that she had been discriminated against based on her association with her child with a disability by not getting access to those insurance benefits. Another issue that''s come up that''s raised a split in the courts, and whenever there''s a split in the courts it may be an issue that the Supreme Court is looking at, so I want you to be aware of this. And this is the issue of sidewalk accessibility. Sounds kind of like an odd thing. But most courts that have looked at this, including the Culvahouse case, which is listed here, have said that the ADA Title 2 applies to sidewalks and that -- that that does encompass municipalities, service programs, and activities, and therefore municipalities have an obligation to ensure that sidewalks are accessible. That they have a clear path of travel and they have an accessible entrance and exit from the sidewalk, access to the sidewalk. And so the -- the Culvahouse case that''s listed here I think is a typical case where a court has said that -- that municipalities have a responsibility to ensure sidewalks are accessible. But the reason I wanted to bring this up is we have now a circuit court of appeals that actually holds differently, and that''s the Frame case out of the Fifth Circuit in Texas. And this is a case where residents who use wheelchairs brought a Title 2 ADA case because the city of Arlington had failed to make its curbs, sidewalks, and parking lots accessible to people who use wheel chairs. And the Court ultimately said that -- that there was not an ADA claim here because they did not see sidewalks as being a service program or activity as required by Title 2. Youll note under the Frame case, I have listed all the other circuit courts that have held the other way. So you see the ninth circuit, sixth circuit, the second circuit, and the third circuit have all held a much more broad view of accessibility requirements for municipalities. The Barden case involving sidewalks specifically, in saying that sidewalks fall within the scope of Title 2. And then the other three cases that just talk about that the phrase service programs, and activities should be including virtually everything that a public entity does, including things like sidewalks. So the fact that we now have a circuit court of appeals that has interpreted these services differently may mean that the Supreme Court wants to look at this issue and resolve it. People may remember the Barden case which is listed here from the ninth circuit actually did get up to the Supreme Court, but ultimately was dismissed because the case had gotten resolved between the parties. So it will be interesting to see if this is something that ultimately gets to the Supreme Court or not, now that we have a difference between the courts. Then I''ve just got two more issues I want to raise, then we''ll open up for questions. One is something we see a lot of litigation under, especially under Title 3, and that is who can bring suit under Title 3. You might remember under Title 3, there are no money damages and if you look at the bullet points for Section I to bring a case under any kind of case under the -- the way the Constitution is written under Article 3, you have to meet some certain criteria. And one of those is you have to show that it''s likely that the relief that you''re seeking will -- the injury will be redressed by the relief that you''re seeking. And typically, that''s going to be money damages, pays you sort of, to competence for this. But because Title 3 doesn''t have money damages, you''re only entitled to injunctive relief, a change in the circumstance. Often times, it''s been challenging for plaintiffs to demonstrate that the relief they request will be available to redress the injury, if it''s unclear that they''re going to return to the facility, the public accommodation, when theyve had access problems. And so you''ve got three cases here listed where plaintiffs were found not able to bring a Title 3 case because they didn''t have standing, they couldn''t prove that there was a likelihood that they would return to the facility in the future. So you''ve got a -- the Brown case is a woman who had access problems at the mall. But she hadn''t put in her case or provided any evidence that she was likely to use that mall again in the future. What happens again in a lot of these cases, a lot of times people get fed up, and say you know what, I''m not coming back to this place. They might even write a note and say you''ve lost my business, I''m not coming back. In effect, that''s actually problematic for any ADA case because they haven''t showed the likelihood that we''re going to return, and if the accessibility barrier would be removed, it would redress their injury, and so often times when people say they''re not going to return or they don''t give evidence that they want to return because they''re ticked they couldn''t get into the place, that actually gets used against them, and they''re deemed not able to proceed with their ADA case after that bad experience. We''re actually going to have a webinar on this and other issues involving barriers to ADA suit. If you go to ADA-audio.org, you''ll see the listing includes barriers to ADA suits on March 18 of 2011. The Norkunas case is another example where the plaintiffs were not allowed to proceed with their ADA case, because they can''t show the likelihood that they were going to return to the barrier that they experienced. This was people who were trying to access a hotel and found barriers involved, Title 3 suits against the hotel. And the Court found there was no evidence that they planned to return to the hotel. The Court also looked at the fact that these plaintiffs specifically had a history of litigation, and seemed to use that against them, that they weren''t trying to redress an injury that they were having when they were trying to access a hotel. But this was something they did regularly in filing ADA suits when they had problems. And courts finding them to really be about litigation, as opposed to addressing barriers that they have encountered more naturally. Now whether that''s a proper thing for them to do or not, you know, is a tricky issue. There''s some people who have abused the Title 3 process and thought a lot of litigation, sometimes just to get a quick financial settlement or attorney''s fees. There''s no evidence here that that was the case in this case, but as a result of some of those cases that people have brought that seem to be abusive of the ADA, some courts are taking a more negative view of people who have a history of doing Title 3 litigation, even though it''s legitimate Title 3 litigation. I just want to mention the Chapman case, which is - it raises an interesting issue reading which barriers you can bring suit on. Ultimately, the Chapman case said you''re only able to bring suit about barriers you actually encountered. For instance, if you are unable to get in the door because there''s inaccessibility, can you then also sue about the inaccessible wash room that you couldn''t get to, because the doorway was inaccessible. And the Chapman case said no, you really can only bring suit on behalf of barriers you actually encounter. Not those that you would have encountered or that you learned about through litigation. And then you''ll see three cases that go the other way, that find that the plaintiff did have standing, that they were actually able to bring their lawsuit under Title 3 because they could show that they were likely to return to the case, to the place where the barriers they had experienced. I wanted to point out specifically the Rose case, because that''s a different scenario than we typically see, involving somebody who was refused services by her doctor because of her HIV positive status, she claimed. And she was denied the gall bladder surgery. And in many of these cases, people go in, get the surgery, and then they can''t bring the ADA case. But this case, the Court said that they could go and bring an ADA case, because it was possible that they would encounter this -- this particular physician again, this is a physician this woman encountered in jail or in prison. And even though she wasn''t in prison when she brought the lawsuit, they said it''s possible that she would potentially be back in prison and encounter this physician again and also the physician also treated people outside of the prison context. So she could encounter that physician otherwise. So the fact that she current wasn''t in prison ultimately the Court found was not a barrier for her to bring her ADA suit. And then the last topic I just wanted to touch on quickly and then we''ll open up for questions is movie theater access. There was a major decision that was decided by the ninth circuit for a case brought in Arizona involving inaccessibility of movie theaters for people who have blind or have low vision, or people who are deaf or hard of hearing. And these were people who had sought captioning as well as audio descriptions of the movies. And the lower court said that they did not have a basis for bringing an ADA case because movie theaters aren''t required to alter the content of their services. And the ninth circuit rejected that and said you know, closed captioning and audio descriptions are auxiliaries to aids and services , and those are things that Title 3 entities have to consider providing, unless they can show that it will be an undue burden or a fundamental alteration. So the Court said that -- they sent that back down to the lower court to find out if it would be an undue burden or a fundamental alteration to provide closed captioning or audio description. And so that''s a -- a very positive decision regarding accessibility of movie theaters for people with disabilities. The Court did note that open captioning is not required, and relied upon some Department of Justice regulations on that issue. And then the last two things listed under movie theater access, in case you didn''t see it, there''s a pretty comprehensive settlement that was reached by the state of Massachusetts regarding three different movie theater chains. And the agreements, if you''re interested in seeing those, can actually be found on the Massachusetts state web site, because the -- the plaintiff or the person -- the entity that brought the suit was the state of Massachusetts through the attorney general. So if you go to www.mass -- M-A-S-S for Massachusetts --.gov and then just type in the word theater, movie theater, you''ll have a link to the press release which explains the agreement in summary and there''s actually links to the three different agreements there that indicate the accessibility that these three movie theater chains are going to provide in Massachusetts now for people who are blind, low vision, deaf, and hard of hearing. And then the other thing I just wanted to alert you to is that the Department of Justice in July issued a notice of proposed rule making regarding movie captioning and video description. And so what they''re seeking is input from people about, you know, whether they should revise their regulations to require movie theater owners and operators to show movies with closed captioning and video description. And if you go to www.ada.gov, you''ll see on that homepage a link to this proposed rule making that they''re looking at. They have some specific questions they want comments on and they''re taking comments for six months. This notice for rule making was issued on July 26 of this year. So six months from now, around January 26, you can make comments until then. If that''s something you''re interested in, go to ADA.gov, and you can get more information on that. So we still have about ten minutes or so, people can ask questions about any of the cases I talked about before, or if there''s an ADA litigation issue that you want to raise as well, I''m happy to answer that as well.
Okay, Ladies and Gentlemen, at this time if you have a question or comment, press the star then 1 key on your touch tone telephone. If you have a question for a comment, press the star then 1 key on your touch tone telephone. I do show one question coming from Jennifer Barney. Jennifer, go ahead.
Can you hear me all right?
Kind of hard. Go ahead.
Yeah, the question I had was the U.S. Air situation yesterday, did you happen to see that, where the physician was denied access to the airline. I wondered if you thought there was going to be some kind of litigation brought as a result of that.
You know, I didn''t hear about that. Was it denied access to an airplane?
Yeah, the guy was on the flight and actually [Inaudible] because the U.S. Air policy said that he couldn''t assist himself in an evacuation that they removed him from the plane.
Wow. No, I hadn''t heard about that. That actually would be outside of the ADA. There''s another law called the Air Carrier Access Act that addresses issues regarding disability, alleged discrimination on an airplane. So it would have to be under the Air Carrier Access Act and I hadn''t looked at that recently. But there''s been mixed litigation on whether or not there''s a private right of action under the Air Carrier Access Act. Maybe that''s something we can look at and provide more information on, as far as where the courts are recently, but I know that some courts have found that you don''t have a private right of action under the Air Carrier Access Act. So depending on where this person is and the circumstances involved, he may or may not have an ability to bring that. But I was involved in a case involving this issue, there were a lot of situations involving people with -- who bring on medical equipment, like I represented a person with HIV who needed to bring on some medical equipment. And then he had been kicked off the plane in a very, you know, horrible way and treated very, very -- in a demeaning manor. And we ended up settling that and not having to file litigation. But that -- the situation may prompt a case under the Air Carrier Access Act.
Thanks for bringing that to my attention. I missed that one.
did you have any other questions?
I''m not showing a question, however, I would like to give everyone the instructions one more time. So if you have a question or comment, press the star then 1 key on your touch tone telephone.
Okay, meanwhile, people ponder their thoughts, and put them together, I''ll ask you Barry -- I am getting one via e-mail, and this person is asking if a person is disabled and unemployed and is being discriminated against for accommodation and interactive issues related to their education at college or university, should they initially file with the EEOC now under the new ADAAA.
Okay, so is the person an employee or a student? Can you tell from the --
Well, they''re unemployed.
Okay, they''re an employee?
They were, now they''re -- [ Multiple voices speaking ]
so it would be an employment discrimination, instead of like a student bringing in some kind of a failure to accommodate claim. Yeah, even though it''s a school, they can still go ahead and file under the ADA. It''s a school that receives federal funding, which most universities do. They may have a claim under Section 504 of the rehab act as well. Typically, and the Department of Education may look at issues involving employment, but typically, they''re going to look at situations more about access to the school for students and issues involving accommodations for students, as opposed to issues involving that -- the situation that you mentioned for employees. You know, when you have public employees, we didn''t find out if it''s a private school or a public school. But if it''s a public situation, it may be a case that gets referred to the Department of Justice. And again, if it''s under Title 2 or Section 504 there are exhaustion requirements so the person could file directly in federal court if that''s the route they want to go. And just remember, this is a -- people probably know this already, but if you do file with the Department of Justice before you go into federal court, remember that the Statute of Limitations for filing in federal court does not toll, unlike the EEOC, where you have to exhaust administrative remedies and the time doesn''t start ticking until they give you the right to sue letter. That clock starts ticking immediately for chases you would bring under Title 2 and Title 3.
Okay. Operator, you want to give instructions again, and [Inaudible] a question.
Sure. So again, Ladies and Gentlemen, if you have a question, press the star then 1 key on your touch tone telephone. Still showing no question.
Okay, well we''re almost at the bottom of the hour, so if you have any final thoughts that you want to share, Barry, at this time?
Sure. I mean, I think -- you know, there''s a lot of different issues that are coming up in the ADA, and we highlighted some of them today. I think you know, we''re going to see more litigation under the ADA Amendment Act and one reason I wanted to start with that is because I think that''s probably the topic that''s the forefront of most folk''s mind. I think it would be really important for people to see how the EEOCs regulations, when they''re finalized, compare with their proposed regulations. As I mentioned, the courts are looking at the proposed regulations and starting to rely on them, there were a lot of comments about those proposed regulations, and it will be interesting to see if there are changes or not, and how that will effect where we go forward. That issue of, you know, issues that are generally deemed to be a disability without a lot of analysis like HIV and cancer and diabetes and things like that, is one I think that will certainly help the Courts, if that continues. If that''s not there anymore, then it may require a little bit more analysis than we''ve seen otherwise. So I think people should really watch for the -- the final rules that the -- that the EEOC puts out and continue to watch to see how the courts are interpreting things. And I think also, as I mentioned before, because of the ADA Amendments Act we''re going to be seeing other issues really scrutinized by the courts in ways that we hadn''t before. And I think in particular, the job description is really an important issue for employers to look at, as well as any other policies that they have, like those 100% heal policies or leave policies where you''re automatically terminating people after they exhaust their FMLA leave or worker''s comp leave. Those are pretty disfavored by courts. And if people are now going to be able to bring those cases because they can more easily prove they have a disability I think employers are going to be much more at risk. And so taking a look at those policies now and taking a look at job descriptions to make sure that they accurately reflect what people are doing in the work place I think is really an important thing to be doing, given where the litigation is likely to go.
Okay, great. If there isn''t any other questions, I''ll just wrap up. Operator, are there any more?
Still no questions.
Okay. All right, so I just want to thank Barry for presenting and sharing that information with us. If later you think of any questions and you want to reach your local ADA center, you can call 800-949-4232, or you can visit the web site, ada-audio.org and complete The Contact Us form. Just submit a question and we can get that to Barry or anywhere, technical assistants here in the office will be able to answer those questions. And I just want to remind everybody that next month, November, audio conference session is posted already on the web site, that''s November 16. And that one is with John Wodash from Department of Justice and we''re not done yet DOJ rule making and updates will be the topic for that session. And as Barry also mentioned, we have several webinars coming up. And if you visit ada-audio.org click on the legal webinar button, you''ll be able to see those sessions posted as well. Thank you for participating, and if you just hang up we are done for today. Thank you very -- thank you everybody for participating.