Good day ladies and gentlemen and welcome to the Americans with Disabilities Act (ADA) Case Law Update. At this time, all participants are in the listen only mode. Later we will conduct the question and answer session and instructions will be given at that time. If anyone should require audio assistance during the conference, please press star then zero to reach an operator. I would now like to turn the call over to Robin Jones.
Good afternoon or good morning to everyone and thank you for joining us for the ADA Audio Conference Series. This is the first of our kickoff session for this fiscal year which for us runs from October of 2011 through September of 2012. We are happy to have all of you back that had joined in the past and we welcome anyone who is new to this particular program. I am going to cover a few basics before we get started with our actual session just to put everybody on the same page. We have changed things up a little bit for those of you who had been with us in the past. We do have people who are joining us today by telephone. We also have individuals who are connected into our webinar platform who are listening through the webinar which we also refer to as streaming audio where they can also view the PowerPoint presentation if they so choose. All of you should have had an opportunity to download a copy of the PowerPoint presentation which was available on the session''s material page of the website where you also got your information on how to connect for this call or the webinar today. Our real-time captioning is being provided through the webinar platform itself. So, anyone who is interested in using the captioning, you can click on the CC icon at the top of your screen if you are in the webinar platform and that will open up your screen for you and you can move it around anywhere you want. For those of you also who are in the webinar platform, we are--you can modify your view for maximizing your view of the PowerPoint slides or other areas of the webinar platform by just pointing up to the top of your screen. The view drop down menu and again, you can choose the different layouts that are available there for you again to maximize whatever works best for you in the session. I do just want to remind a few people some, again, some logistics of the program. This is being recorded. It will be archived for viewing at a later date, specifically posted in the archive including our written transcript within 10 days of business days of the close of the session itself. Because we are also in the webinar platform, you also have that recorded as well for people to be able to view and to listen to. So, a little bit different and different options available. We will be taking same questions today. There actually will be two times that our presenter will be taking questions today and we will cue you when to do that. Those of you on the telephone, the operator will give you instructions on how to go about doing that. For those of you in the webinar platform, you can enter questions into the chat area and they will be repeated by Peter Berg who is serving an assist me and the moderator today to our presenter when the time comes and he will be able to respond to your questions. As with any session, it is always about time and hoping we can get enough time to be able to respond to your particular question. So, I am going to go ahead and move forward with the session at this time and I would like to introduce and for many of you, this is a very familiar name and that is Barry Taylor. He has joined us for other sessions in the past and he is well known for the programs to many of you. Barry has served as the legal advocacy director at Equip for Equality, the Illinois Protection and Advocacy System since November of 1996. In that role, he supervises the legal services of advocacy and training program. He has also overseen many individual and systemic disability discrimination cases including successful struggle with ADA suits against the National Board of Medical Examiners, the Chicago Police Department, Chicago Transit Authority, and he is currently a counsel in a legal class action on behalf of people with developmental disabilities living in large private institutions who are seeking community services. He oversees the agency''s self-advocacy training project and with its first years has trained over 23,000 people in the area of self-advocacy. There is more information about Barry''s background and such available on the website. I think this is the comment I have made so far to give you a good indication of the fact that you have a speaker today who is well versed in the ADA issues and well qualified to speak to you on the ADA case law. So, without further ado, I am going to go ahead and turn over the microphone to Barry. Thank you, Barry.
Great. Thank you, Robin. It is a pleasure to be back with you again. We have done this a number of times and for those of you who have not been participating in these sessions before, what we will do is we are talking about ADA case law that has developed over the past year. So, we are talking about recent cases, really how the courts are interpreting a variety of issues and what we are going to be doing is we are going to be talking about several issues under Title I, the Employment Provisions of the ADA, some of the recent cases that have come down in that arena. We will stop for a few minutes and take some questions and then we will resume and talk about other issues with respect to Title II and Title III of the ADA. So, with respect to employment, we are going to talk about the ADA Amendments Act, reasonable accommodation, qualified essential function issues, direct threat and retaliation. And then after the break, we are going to be talking about education, professional licensing, criminal justice, community integration, standing to sue, program accessibility, transportation, as well as a couple of issues that are not on the slide, public accommodation definition as well as effective communication. So, the first issue we are going to talk about is recent litigation under ADA Amendments Act and, you know, in the past when I have been on these sessions, it is always been boy, the courts are really tough on the definition of disability and it was kind of depressing from a disability advocate standpoint as far as how the courts were interpreting the ADA so narrowly. But, you know since the ADA Amendments Act has been passed back in 2008, we now have three years for it to be up and running in court cases to be implementing the ADA Amendments Act. We are seeing a real major C change. The definition of disability is now being broadly construed as Congress has ordered under the ADA Amendments Act and so a lot of people are able to continue with their cases beyond after they have been able to prove easily the definition of disability whereas before the ADA Amendments Act, the courts were taking a much more strictly--strict standard, demanding standard view of the definition of disability. But that has really changed the landscape of ADA litigation. When Congress passed the ADA Amendments Act they talked about how it wanted the courts to take a broad view of the definition of disability and so we have a slide that just gives you some examples of what the courts have said and what has been I think very heartening from a disability advocate standpoint is that the courts are really taking Congress seriously and they are interpreting the definition of disability very broadly. They are not spending a lot of time on this issue and are moving forward to other issues in an ADA case per Congress'' instructions. So, you have the Naber case where the court says that the ADA should be construed in favor of broad coverage. The Gesegnet case where the courts says the broad definition of disability that Congress intended makes us able to assume that many people have disabilities under the ADA including the plaintiff in that case and the Gibbs Case where the court said that the ADA Amendments Act lowered the bar on the disability inquiry and these cases are just representative of a large number of cases which have--large number of cases which are interpreting the ADA very broadly. You might remember too that before the ADA Amendments Act, many people with impairments that were episodic or intermittent or in remission were often found not to be covered by the ADA. And Congress when it passed the ADA Amendments Act fixed this and said that episodic impairments can be substantially limiting if they--can be disabilities under the ADA if they will be substantially limiting when active. And, the Kinney case which is decided just this summer is a good example of Congress; excuse me, the courts applying what Congress asked them to do. The Kinney case was a case involving an employee who had requested leave to receive in-patient treatment for her depression and the supervisor was not very sympathetic to the employee they said that she was overreacting. People get sad all the time, why do you need to go somewhere for your problem. Ultimately, she did take leave but the employer did not allow her to return to leave--return from the leave and ultimately, she was terminated. And so, she sued under the ADA Amendments Act and the courts said that the ADA Amendments Act allowed her to go forward with her case, and the court rejected the employer''s claim that the fact that she only had isolated bouts of depression did not mean that she did not have an ADA disability. The court said that looking at what Congress said that episodic or intermittent impairments can be an ADA disability if they substantially limit a major life activity when active. And the court felt that she had done that sufficiently and therefore, she was able to continue with her case. Sorry there. I pressed the wrong button for those of you in the chatroom, one second. Alright, and the next case, we have the Feldman case. It is a similar example of where episodic impairments can be substantially limiting. That case involves two former employers who alleged ADA violations and the court first looked it up, plaintiff with multiple sclerosis. And the court said again the fact that they had an episodic or that the multiple sclerosis was actually in remission at the time when the adverse action was taken did not mean that they did not have a disability. And so, they were able to go forward despite the fact that the reactions, the symptoms related to this impairment were intermittent and episodic and not happening all the time. The court also said something else that I think was important and that is, they noted that the Equal Employment Opportunity Commission (EEOC)''s proposed regulations, they noted those favorably and those are the ones that listed multiple sclerosis among a number of impairments that the EEOC would say consistently meets the definition of disability and therefore, courts do not need to spend a lot of time determining whether that has a disability or not because the EEOC has said, you know, typically those kind--people with those types of impairments are going to be easily able to prove they have a disability under the ADA. The other thing that is important about the court deferring to the EEOC is you might remember that prior to the ADA Amendments Act, many courts including our Supreme Court had said that the EEOC, the Equal Employment Opportunity Commission and the Department of Justice did not have the authority to interpret the definition of disability because it did not fall under Title I, Title II, or Title III. It was before those provisions and since the court felt that because Congress had not explicitly said that the EEOC and Department of Justice have authority to interpret those, the court was not under any obligations to refer or defer to those regulations. Well, when Congress passed the ADA Amendments Act, they said you know courts, you got it wrong. We do want the EEOC and Department of Justice (DOJ) to interpret the definition of disability. We think that is part of their authority and we want to explicitly grant it so there is no confusion going forward and we want courts to look at their regulations and so now we have EEOC regulations that were put in place earlier this year. It became effective in May of this year and now courts are looking to the EEOC and there is really no dispute that the EEOC does have this authority along with the Department of Justice. A couple more examples of episodic impairments that can be substantially limiting. The Medvic Case is somebody who had a stuttering disability that was not--you know, it came and went depending on the situation and the employer tried to argue that it was not a consistent substantial limitation and the court rejected that. They said when active, when stuttering is active, the person is substantially limited in a major life activity of communication and the Norton case, the same thing saying that the person with renal cancer when active substantially limited the major life activity of normal cell growth. And even though the person was in remission, his cancer was in remission, when he returned to work, it did not matter because when it was not in remission, it did substantially limit a major life activity. And I think these are again examples of cases that if they had been brought before the ADA Amendments Act, they likely would have lost their case and here, you can see they are able to move forward their case and easily prove they have a disability under the ADA. Another thing that made it difficult for people with disabilities in their litigation under the ADA before the amendments was people who had impairments of short duration. And, I have got a couple of examples of those cases that have happened since the ADA Amendments Act, the first one being the Feldman case. We talked about the Feldman case before with respect to the plaintiff with multiple sclerosis. The other plaintiff had an impairment called transient ischemic attack or Transient Ischemic Attack (TIA), also known as a mini-stroke. And the employer in that case have said that the plaintiff was not covered by the ADA because the mini-strokes they had were temporary and they looked at some of the EEOC regulations saying well, the EEOC themselves say that temporary non-chronic impairments of short duration will usually not limit a major life activity if they have little or no residual effect. And the court said well yes, the EEOC did say that but the person with this TIA or mini-stroke does not fall within that because the actual effects or response to these mini strokes were significant. Stroke-like symptoms, they were not this type of sort of minor types of impairment like a common cold or a sprained joint like the EEOC had said. And so, they said that the employer''s reliance upon the EEOC''s regulations were misplaced and even though the mini-strokes were a short duration, they were significant enough to be deemed a disability under the ADA. The next case, the Patton case is another example of an impairment of short duration. This is actually a Family Medical Leave Act case but they relied upon the definition of disability under the ADA Amendments Act in reaching their decision. In this case, you had an employee who had a daughter who broke her leg in a car accident. And the employer tried to argue that the broken leg did not substantially limit her in a major life activity of walking and the reason was because they said, you know, she was only unable to walk for a few months and therefore, you know, these short non-chronic impairments are not considered disabilities. And the court said well, if you look at the ADA Amendments Act, even if it is short, it can still be a disability if the intensity is significant and here they found the intensity of the plaintiff''s broken femurs, the fact that she could not walk unassisted and happen to use a wheelchair for a number of weeks did allow her case to proceed even though it was a temporary impairment that she fully recovered from. Before the ADA Amendments Act, you might remember that if you look at the ADA, there was no actual definition or listing of what is a major life activity under the definition of disability. Remember, the definition of disability is a substantial limitation in a major life activity but the ADA text itself did not have any examples of major life activity or a definition. So, Congress when it went into--passed the amendments acts said we need to fix that. And so, what they did was they gave us a non-exhaustive list meaning it is not exclusive. Actually, in the ADA Amendments Act and they listed a lot of different major life activities that they said, these are major life activities and there may be more but these are some good examples and things like walking and hearing and seeing and eating and sleeping, a lot of different major life activities were listed by Congress and then the EEOC actually added a few more in their regulations. Congress did something else too. They added what we call major bodily functions because there are many impairments that do not easily fit within the traditional major life activities. So, for instance, somebody with cancer oftentimes before the ADA Amendments Act had a hard time proving that they were substantially limited to a particular major life activity. And Congress said, well, we want people with cancer to generally be covered. And so, we are going to add these groups of things called major bodily functions including normal cell growth and if somebody has cancer, they are substantially limited in a major bodily function of normal cell growth. And so, similarly, somebody with Human Immunodeficiency Virus (HIV) is substantially limited to major bodily function of the immune system. And so these--this is really a broad expansion of the major life activity and again because it is in the text of the ADA itself really gave people an opportunity to easily prove that they are covered by the ADA when before the ADA Amendments Act, they were having a really hard time. And so, what we are waiting to found out is how are courts going to apply this new list of major bodily functions. And what we are seeing consistently across the country is that the courts are embracing these new major bodily functions and without a lot of analysis, really quickly finding that people who have some of these impairments that substantially limit a major bodily function, they are covered by the ADA. And the Norton case is a good example of that. That case you had a person who had renal cancer and the court quickly said, normal cell growth does constitute a major life activity under the ADA Amendments Act. And then they also again deferred to the EEOC''s regulation which lists those impairments that will easily be found to be a disability within the ADA. So again, a lot of deference to the EEOC by courts under the initial cases following the ADA Amendments Act. I got a couple more examples of people using this expanded list, the Chalfont case, somebody who had both leukemia and heart disease. And the court looked at the fact that they were substantially limited in the major life activity of normal cell growth for the leukemia and for the circulatory function for the heart disease. Again, not a lot of analyses, quickly found they had a disability under the ADA. Before the ADA Amendments Act, this plaintiff might have easily lost this case because of the way the courts were interpreting the definition of disability so narrowly. And then the Seim case is another example. This person had Graves'' disease and what is interesting about this one is that the court said that if the medication side effects, you can also look at those when determining whether that substantially limited any kind of major bodily function. And here they found that the Graves'' disease along with the medication side effects, did substantially limits this plaintiff in the major bodily functions of the immune, circulatory, and endocrine systems. You might also remember before the ADA Amendment Act, the Supreme Court held in the Sutton case that in determining whether someone has a substantial limitation, you have to look at that person in a mitigated state. So, if they used medication or assistive devices, you look at them in that--after considering those medications or those assistive devices in determining whether they are substantially limited and for a lot of people with different impairments who use assistive devices or medications, they were frequently found not to be covered by the ADA. And again, Congress said you got that wrong, Supreme Court. We are going to fix this and so they expressly said in the ADA Amendments Act that courts should no longer consider mitigating measures when assessing whether somebody has a disability or not. Now, you can consider mitigating measures when determining whether somebody is qualified to do the job that is the appropriate time to consider those mitigating measures. But when determining whether they are covered by the law or not, you do not consider mitigating measures. And, you will see in this slide, there are a number of cases that give you some examples of the court interpreting directly what the Supreme--excuse me, what Congress has said. So, in the Kintz case, the plaintiff had a leg brace and the employer said you should consider the leg brace in determining whether they are substantially limited in the major life activity of walking and the court said no, that is a mitigating measure. We do not consider it therefore, they are substantially limited. Do not consider the leg brace. Again, somebody used medication for their stuttering in the Medvic case that we talked about before, the court here said do not consider the medication. Without the medication, they are substantially limited in the major life activity of communication. And then, the Eldredge case is an important one because this is somebody with a visual disability who used the magnifier and Congress said people who used magnifiers to enhance the size of text, those are mitigating measures that are not to be considered. However, if somebody uses ordinary eyeglasses or contact lenses, you do consider it those in determining whether somebody has a disability under the ADA. So, here in the Eldredge case, it is a magnifier, we are not talking about glasses or contact lenses so the court was correct and they did not consider the magnifier and the person was held to have a disability. And finally, it is important to recognize that although you do not consider mitigating measures positive effects when determining whether somebody is substantially limited in a major life activity. Congress and the EEOC have said that you do consider the side effects from medical treatment when considering whether somebody is substantially limited, and the Sulima case is an example of that. You might remember too prior to the ADA Amendments Act, courts were taking a very narrow interpretation of what is considered or regarded as number--under the ADA can be covered a number of ways including if you were regarded as having a disability. And, what was problematic before the ADA Amendments Act was that plaintiffs had to prove that the employer regarded them as substantially limited in a particular major life activity and that was very challenging for people because that basically required you to get inside the head of your employer and prove that they regard you in a particular major life activity. And employers, they will know that has not what I was doing, I regarded them as something else or you know they were not able to do the job, not that they were substantially limited in a major life activity of eating. It was a very difficult thing for employees to prove. And so, what Congress said is regarded as you no longer have to show that the--what the employer intended as far as substantially limiting a major life activity. If you can just show that there was some sort of impairment and they took an adverse action because of that perception of an impairment that has enough. And the Fleck case is a good example of that. You had a plaintiff who had an ankle injury and it probably would not have risen to the level of disability but she claimed that she was regarded as having an ADA disability and the court said yes, Congress has de-emphasized what the employer''s belief is as to the severity or the particular major life activity of the perceived impairment. And in this case, we had a plaintiff who had a visibly plain foot--excuse me a boot her foot. She also had the fact she had notified her employer of the need for ankle surgery, also notified the employer that she needed breaks from returning from work. And they said, you know, all those facts are enough to raise an imprint that the defendant regarded them as being disabled under the ADA. And so, this person is able to prove that they were covered and regarded as prong whereas before the ADA Amendments Act, they probably would not have been able to do so. The Chamberlain case is another example where somebody had a visual--some visual difficulties that might not have risen to the level of a substantial limitation in a major life activity. But the employer took some pretty significant actions against the employee as a result of learning that they did have these visual difficulties and even though, they were--had submitted documentation that they could return to the job, the employer did not allow the employee to return to work and ultimately terminated her. And the court said yes, they did regard them as having a disability and the employer tried to say well, we did not regard them as having impairment because it was a transitory minor impairment but the court said well, your actions speak otherwise. Because you--there was testimony that the supervisor insisted that the employee was completely unable to work because of the vision problem. So, based on that statement and the actions of the employer not to allow the employee to return to work, that was enough for regarded as a claim to proceed. In addition to litigation on the ADA Amendments Act, there is obviously other litigations that has come down under Title I of the employment provisions of the ADA and we are going to see probably more of these kinds of cases now that more people are able to continue with their cases under the new ADA Amendments Act. Their cases are not going to be dismissed. So, we are probably going to see more reasonable accommodation cases and others that we are going to talk about next. I just got a couple of examples. You know, the general rule is that when a reasonable accommodation is requested, most courts say there needs to be an interactive process between the employee and the employer. And the general rule is that if the employer does not engage in this interactive process talking to the employee, doing an investigation, really evaluating the accommodation request. They will frequently lose these cases and again, if they do engage in the interactive process, they will typically win. The courts will be much more deferential. And the Anderson case is a case where the employer did the right thing. They engage in interactive process, the person had asthma. They came up with a lot of different ideas of how to accommodate her. Ultimately, they were not able to work it out but the employer did enough to be deemed to have fulfilled their obligations under the ADA. Whereas in the Colwell case, the employer did not do that. The cashier in this case had glaucoma and she had asked to be assigned to the day shift because her partial blindness had prevented her from driving at night. And although the employer scheduled a meeting, the employer representative blew off the meeting, did not reschedule it. She ultimately quit out of frustration and the court said if the employer did not meet his obligations here to engage in interactive process then the employee''s case could proceed. Another common reasonable accommodation is leave as an accommodation and the Dandler-Hill case is a case that I think is typical of what we see when employees cannot give their employer a good indication of when they are coming back. And, when they basically are asking for indefinite leave, most courts are not going to recognize that as a reasonable accommodation. Now, if the employer in this case has had a first day policy that if you are not able to return within six months, you are automatically terminated. This case may have gone a different way because the courts as well as the EEOC disfavor these automatic termination policies. But here, the employer tried to find out when they could return after six months and continue to try to work it out and they could not get a definite answer or even a proposed answer from the plaintiff and the doctor so it was justifiable for them to terminate the employee. The EEOC has been very active in this issue and we have a couple of examples of recent settlements that have been reached in their cases involving leave as an accommodation. One that got a lot of press this summer is the EEOCC versus Verizon and I think Verizon paid what might be the highest settlement amount in any ADA case that I am aware of. They ended up paying 20 million dollars to resolve an ADA national class action lawsuit. And what the EEOC had alleged is that Verizon was denying reasonable accommodation to hundreds and hundreds of employees who had either been disciplined or fired when they were not able to meet the attendance plan that Verizon had and were not able to take leave as an accommodation. And similarly, in the Supervalu case, the EEOC reached an agreement with Supervalu which runs various grocery stores like Jewel in Illinois. And they had a policy of terminating employees at the end of their medical leave rather than evaluating their ability to come back, maybe extending the leave or providing reasonable accommodation. And so, those were--they ended up reaching a settlement but that has another example of when the leave is not provided appropriately as an accommodation or people returning from leave meeting accommodations after they return. Another common thing we see is when employers remove reasonable accommodations and generally, courts have disfavored these kinds of things. The Valle-Acre case is--Arce---Valle-Arce case is an example of this. An employee had a chronic fatigue syndrome that made it difficult for them to arrive on time at work and so there--the employer had provided for three years a later start time as an accommodation. But then which commonly happens, a new supervisor comes in and says why are we giving this accommodation and ultimately removed accommodation which aggravated the employee''s symptoms, forced her to take time off from work and ultimately, she was terminated for not meeting the attendance requirements of the job. And the court found that the employee had provided enough evidence to show that a jury could find that she could perform the essential job functions and the employer was wrong in removing the reasonable accommodation. And because she had done, able to perform her job for three years with the accommodation, that was good evidence that she could have continued to provide that accommodation. And it was also good evidence that the accommodation was not any kind of undue hardship because it has worked well for three years. So, when employers are seeking to remove an accommodation, you need to show that either a circumstance is changed, maybe the person''s impairment no longer needs that type of accommodation or something has changed in the workplace where the accommodation is no longer something that is reasonable but has become some sort of undue hardship because of an increased expense or some sort of new difficulty. Also, as an accommodation, you can request removing nonessential functions and the EEOC versus Autozone Case is a good example of that. You had an employee here who was a sales manager for Autozone and it happened that all sales managers also had to do some cleaning and mopping up, and for this particular employee, that violated his medical restrictions to do those kinds of cleaning task, it exacerbated his disability and so he asked for an accommodation not to be assigned these mopping responsibilities and he did provide medical support for that but the employer refused to grant the request and he ended up getting further injured and went on medical leave. And so, the EEOC filed suit on this issue on his behalf and for the government arguing that mopping floors was a nonessential function and therefore could have been assigned to other employees as a reasonable accommodation and the court--this ultimately went to a jury and the jury agreed with EEOC and found for in favor of the employee and EEOC and returned a verdict of 600,000 dollars, a significant verdict likely reduced to when you look at the statutory maximums but that demonstrates that a jury found this issue very compelling and that the Autozone had acted improperly here. Another accommodation, I think, that we are going to see a lot of especially as we become much more of a telework kind of society is people working at home as an accommodation and these are very fact-specific cases and there are certain jobs that really lend themselves to working at home and certain fact--jobs that do not and the Gomez-Gonzales case is an example where even if you have gottenyou have been able to work at home, sometimes, does not mean that you are guaranteed to get maybe extended or expanded working at home privileges. So this person had been able to work at home a few times but was looking to expand that to work at home four days a week and the employer denied this new request and they tried to look at other accommodations. It ultimately did not work out and the employee was fired for not being able to meet the attendance requirement, and the court agree with the employer here and said that, you know, the--even though they had previously allowed them to work from home occasionally, the employee did not meet their burden of showing that the accommodation would be reasonable to work at home for such a larger period of time, so sometimes the evidence of a prior accommodation like in the case we just talked about, the Autozone case can be--not the Autozone case, the Valle-Arce case where the person had had the accommodation for 3 years, sometimes that can be good evidence that the accommodation is reasonable but here it did not work out as well because the expansion of the work at home really did not ultimately deem reasonable why the employer or the court because of their need to be interacting more often with--in person with fellow employees for this particular job. Again, a very factual specific type of case. The next thing we want to talk a little bit about is some recent litigation on issues involving whether you are qualified to do the job and meet the reasonable--excuse me--the--can perform the essential functions of the job and again, this is an area where I think we are going to see more litigation in the wake of the ADA Amendments Act and the Roberts case is a very typical kind of case where courts have found that attendance is a reasonable--excuse me--is an essential function of the job. Now we talked about how employers have to accommodate and give people leave and not have strict attendance policies but again, if you have an employee who is not able to work long term and meet the attendance requirements, courts are going to be fairly deferential to them and the Roberts case is an example of that where the court found that the indefiniteness of them not being able to return to work meant that they could not meet the essential functions of the job, particularly the essential function of attendance. Another common one we see is lifting and the Supinski case is a good example of that. Many job descriptions have lifting sort of thrown in there as just an automatic requirement for all jobs when in fact many jobs do not require lifting, or if there is lifting maybe you can do some lifting with an accommodation, some sort of assistance in the workplace, and this is somebody who worked for UPS and they sustained a work-related injury and got a doctor imposed lifting restriction and he could not perform his job that required a lot of lifting so he was to return to a job that did not require as much lifting within his lifting restrictions and the court. UPS refused to allow him to go to that position saying that he still would have to lift beyond his weight restrictions and so they did not allow him to return to any position and the court found that there was a question of fact whether lifting weight in excess of his restrictions was an essential function and what, I think, hurt the UPS here was that they had a policy about lifting that was created after the plaintiff had made his accommodation request and was very ambiguous. And you also had evidence that there was a worker who had a similar position, the plaintiff--the one the plaintiff had sought that could perform the job with the plaintiff''s restrictions and so that undercut the employer''s argument so I think the rule here for employers is to look at your job descriptions, make sure they accurately reflect what is actually happening in the workplace and take into account reasonable accommodations because even though job descriptions can be evidence in determining whether there is an essential function, it is not going to be automatically determinative and the courts are not going to automatically defer to the job description. And the Turowski case is a little less kind of frequent case but I thought was interesting, involved a person who was a chauffeur for somebody who was the chief operating officer of a large corporation and he had sustained a traumatic brain injury that left him susceptible to fatigue and also made it difficult for him to handle changes in his daily schedule. But this particular job required him to be able to change his schedule frequently because of the different schedule of the COO that he had to drive around and so while changes to the daily schedule is not necessarily an essential function for most jobs, for this particular job it was and he could not meet it in the wake of his disability and so this is an example of an essential function that may not be typical for most job descriptions but is--for this particular one in why you need to do an individualized inquiry for these types of cases. Another thing we see a lot of are these things called, and I do not like this but it is what you see, called a 100 Percent Healed Policies and basically what these mean is employers are requiring people to return to work after a leave without any restrictions, without any accommodations in the workplace and the EEOC and courts have been very disfavoring of these types of policies because they really ignore the obligation under the ADA to provide a reasonable accommodation including accommodations when people return to leave and the Nolan case is an example of an employer who had one of these policies that the court found was a violation of the ADA. We also have some court cases here on direct threat, and as you recall, direct threat is a defense that an employee can raise--excuse me--that an employer can raise if the person is potentially a threat to themselves or others in the workplace, a significant risk of substantial harm and you got a few cases here as examples, the EEOC versus Rite-Aid case where you had an employee with epilepsy that had had a seizure but there had been harm to himself or the others in the workplace, the doctor had cleared him to work and he had actually got an examination from the epilepsy center locally and they also cleared him to work but Rite-Aid continued to request him to have an additional exam and this one was done by a doctor with no epilepsy experience, and they deferred to that doctor who said the person need a leave of absence. And ultimately, they said that he is a direct threat and was not allowed to return to work. And the court found that this case could go forward because there was no significant risk or substantial harm of evidence that this person was a threat and they also had the employee''s own manager stating that the person was not considered a threat so not a strong case here for the employer. And the James case involved another person who had a seizure at work. Again, we often see direct threat issues raised for people who have seizure disorders and this person had seizure as a result of apparently a brain tumor, and what is different about this case is that the employer tried to have him have a medical examination that would say that he would be seizure free for 6 months and this was after the employer had submitted medical confirmation that he was able to return to work and he refused to the medical exam. He said you do not need this, I have got documentation that says I can return to work and the court found that the employer''s reasoning for finding a threat and requiring the medical exam were unclear given what the plaintiff''s own doctor had said that he could do and so they found that the medical examination was not warranted, it was not job-related or consistent with business necessity. Now, I will say that this case is probably not typical, most courts have been rather deferential to employers who have asked people to undergo medical examinations but I think the wrinkle here is the person did have medical documentation and the employer was trying to get more and the court felt that the employer had overreached. And then also we have cases where it is again a perceived threat because of verbal issues in the workplace and the Pearson case is one where the court found that the verbal cursing and threatening of a supervisor was justified for the person to be a direct threat, and they said the important thing here is that you are consistent and that if somebody makes a similar threat and they do not have a disability that you have similar discipline and so they found that because they were consistent in their application of this policy that they were justified under the ADA and it was not discrimination. But if you look at a case with similar types of threat allegations, the Miller case from Illinois, you had an employee who had made threats in the workplace and here the court found that they were not a direct threat and the big thing, I think, that was different here is that they did not--they--there was evidence that the employer had not been consistent. They had had an employee who had, without a disability, who had made a more unambiguous threat and they had not terminated that person and so it was clear from the court''s view that the employee with the disability was treated differently than the employee without a disability and therefore, gave rise to a discrimination claim. And then the last thing I wanted to talk about real briefly before we open it up for questions is the issue of retaliation and one reason I want to talk about this is the United States Supreme Court this past year did decide a retaliation case. It was not under the ADA, it was under Title VII, which covers other types of protected classes but because Title VII and the ADA''s definition of retaliation provisions are very similar, we thought it was important to talk about and you might have heard about this case decided in 2011, the Thompson case and basically, they were saying you know, they were--the Supreme Court was determining who is covered under retaliation and the Supreme Court said that an aggrieved person under Title VII is going to be able to bring a retaliation claim if they can fall within a zone of interest protected by the statute. So the question is when we applied this to the ADA, who was covered for retaliation claims? And we have a case that was decided just this summer, in August, the Whittaker case, involving a school counselor who can--who had complained that the district was not treating its students with disabilities properly and he was fired soon after making these complaints. And so the question came, was he an aggrieved person? Did he fall within the zone of interest? And the court applied the Supreme Court''s decision in Thompson and said, yes, he is an aggrieved person. As a counselor, his job is to educate students with disabilities and therefore, he falls under the zone of interest standard that the Supreme Court articulated and could bring forth retaliation claim. So, one reason why we are talking about this today is that if you have heard about this new Supreme Court case, it is clear that courts are applying this to the ADA as well. Remember, too, if you bring a retaliation claim you have to show that you are engaged in a protected activity and the more common activities or things like filing with the EEOC or requesting for reasonable accommodation and then having an adverse action happen to you after you do that and the Stephens case is an example of expanding this to an area where you may not have thought covered for retaliation where an employee had contacted union officials about the fact that the accommodation had then been provided, and the court found that that was valid for a retaliation claim. And then the Guinup case is an example of somebody who when they requested medical leave that that was enough to be considered a protected activity even though they had not characterized this reasonable accommodation so they were able to proceed with their retaliation claim as well. The other thing to remember under retaliation is that there has to be a causal connection between adverse action and the protected activity and usually what courts are looking at is, did the employer react and make the adverse action soon after you engage in some sort of protected activity, so if you follow the EEOC, did they terminate you within a few days or was it many months afterwards, and the Valle-Arce case is an example of whether was this causal connection because the employee''s exercise of their ADA rights request for the accommodation resulted in an adverse action within 16 days and so they found the causal connection. But the Feldman case is an example of they are not being a causal connection because there being a significant of time between the protected activity the person found with the EEOC and the termination that was eight months between the two and therefore there was not a causal connection. The only thing else I wanted to mention before we take a break is that the Supreme Court also recently heard an ADA case and if you were on the call last year, you might remember we talked about the issue of what we call the ministerial exception of the ADA and that is for people who work for religious entity and you might remember we talked about the EEOC versus Hosanna-Tabor case and this was a teacher who worked for religious school who was diagnosed with narcolepsy and took an extended leave of absence and she was not able to return to work and she sued under the ADA, and the religious school had claimed it was not covered by the ADA because of this ministerial exception. But the lower court, the Sixth Circuit, at that time ruled in favor of the teacher and found that because she mostly taught primarily secular topics during the school day, I think, they said it was about 6 hours and 15 minutes for a 7-hour school day were devoted to teaching secular topics using secular textbooks, and only about 45 minutes for focusing on religion. She was able to bring an ADA suit and what happened since our discussion last fall is that the religious institution then asked the Supreme Court to look at the case and they agreed to hear that and there was oral argument on that case just this fall so we should know sometime in the next few months whether or not the Supreme Court is going to agree with the Lower Court and the EEOC that this person should be able to bring an ADA suit because their job was primarily non-religious or the Supreme Court is going to take a different view and so it is hard to know for sure but something to keep your eye and ears open for as far as how the Supreme Court is going to rule on that issue. So with that, why do not we open up, Robin, see if anybody has any questions on Title I issues and then we will turn to Title II and Title III issues. Well, Peter if you are there, I do not know.
Yeah. Operator, if you could come on and give instructions on how folks can ask questions at this time?
Right. Ladies and gentlemen, if you have a question at this time, please press the star key and then the 1 key on your touch tone telephone. If your question had been answered or you wish to remove yourself from queue, please press the pound key. Again, to ask a question, please press star 1.
I am sorry about that. Barry while we are waiting for folks to see if they have any questions, one kind of general question and then you are going to get to the other titles but somebody asked, you know what--why the lack of Title III cases but in general, you know, what is your guess in terms of the percentage of, you know, Title I employment cases, Title II state and local Government, and Title III places of public accommodation that are filed with the federal--
You know, I think, there is significantly more employment law cases filed. The numbers actually increase since the ADA Amendments Act has passed and so there is many more cases that are litigated that way and I think, you know, one of the reasons we might be under Title III, there are not damages and oftentimes employers want to--you file suit, often those cases settle, the employer will provide the access that was not provided and so if you--even though a lot of litigation may be filed, you--we have much fewer cases that are reported and that get a decision by a court because so many of those cases settle, again, because there are not monetary damages involved. That would be my guess as to why we see much more Title I litigation than the other titles but we do have quite a bit of cases just to talk about because I know people are interested in these issues as well and I think they are very important.
Okay, great! Jamie, do we have any questions from our telephone callers? And I should mention that the folks that are using the audio streaming, you can submit your question from the chat area at this time. Jamie, go ahead, do we have a question?
At this time, actually, no question. I will remind everybody to please press star 1 if you would like to ask a question.
Okay. And Barry, another question from the chat area, the ones in the listening audio streaming. Someone has a question about the statutory maximums that you mentioned briefly, and want to know if you could touch on that a little further and where they could get additional information about that.
Yeah, the ADA actually and the text itself says that the size of the employer will determine how much you can recover in a case and so, if you have a very large employer and I do not have those numbers right in front of me but if you have a large employer like Autozone which has hundreds of employees, you can only--the statutory maximum is 300,000 and if you have fewer employers then the statutory maximums are less than that so that is right in the text of the ADA. So oftentimes what happens in cases is that the jury will not know about the statutory maximums so they will come back with a verdict say 600,000 dollars but oftentimes courts will reduce that unless there is some other basis for them to go above the statutory maximum after the jury has come back.
Do you want me to just jump in, do some Title II, Title III and then we will some questions at the end, Peter, or?
Sure. Sure, we will go ahead and folks that have asked Title I questions, we will get to those when we get there next period for questions.
Okay, great. Well, let us talk about some other issues under Title II and Title III because I know folks are interested in those as well. On the issue of education, I wanted people to be aware of a pretty major settlement that DOJ has been involved with regarding people who work--the Nobel Learning Communities Schools and I think you will see a lot of DOJ cases and that their actions under the ADA have really increased under the current administration, especially with respect to community integration issues but the Nobel Learning Communities case involved an agreement that was reached with a private company that operate schools in 15 states and the issue that was involved in this case was they were categorically excluding kids with autism and so after DOJ got involved, they reached an agreement where the Nobel Learning Communities would do a variety of things including no longer excluding kids with autism so that this would not be a problem and I wanted to point out that a lot of these settlements and agreements and briefs that the DOJ has filed can be easily found on their website which is located at www.ada.gov and some of the EEOC ones that we talked about can be found on their website which is www.eeoc.gov. Another important case I just wanted to let people know about that I think is interesting is the Fialka-Feldman case out of Michigan and that involved a person who had a cognitive disability and was enrolled in what is called a non-degree program that the university had offered and the school had a policy of limiting its housing on-campus to people who are in degree programs and because the plaintiff, the student here, was not in degree program, he was not allowed to live in the campus dorm and so he sued under a variety of things including Title II of the ADA, and the court found in his favor and they said you know, even though the rule was disability neutral, it did not say only people with disabilities can live on campus, it said people who are non-degree cannot live on campus because the people with non-degree were substantially more likely to have a disability, they found that that was not--that that was what is called--had a disparate impact and was discriminatory even though it was not discriminatory on its face and therefore, the court found that that was really a policy that was grounded in prejudice, stereotypes, and unfounded fear, and so they allowed that person''s case to continue. We also had some major developments this year in professional licensing and the Enyart case is really, I think, a significant one that people should pay attention to. It is involved somebody who was blind who needed accommodations on the state bar examination and while the Local Bar Association agreed, the National Bar Examiners refused to provide this accommodation and they said, well, the reason is because we have already given you some testing accommodations like extra time and hourly breaks and a private room, and we are not going to give you the JAWS and the Zoom Text because you have been successful on other tests before without those types of accommodation and the court. The Ninth Circuit, affirmed the lower court ruling that he should be entitled to provide to the assistive technology and the fact that they did not--that he had had different accommodations before did not mean that the current accommodations provided effective communication, and so I think this is a good lesson that, you know, Title III entities are not off the hook if they provide some ADA accommodation request if they are not effective and what is important here is that the court relied on a Title III regulation that said that examinations must be administered so as to best ensure that the examination result accurately the individual''s aptitude or achievement level and the court found that this best ensure standard was valid and so--and that the accommodation offered to the plaintiff would not make the exam accessible to the student here and they had rejected the fact that the person had success on previous tests with other types of accommodations without the assistive technology. One thing they noted was that the plaintiff''s disability was progressive meaning that the testing accommodations should advance as their disability changes as well as technology progresses and one reason this was important was because this is another case that the Supreme Court was looking at possibly taking the National Conference for Bar Examiners asked the Supreme Courts take it to review this best ensure standard to say, you know, is this a proper standard that the DOJ has articulated and the Supreme Court declined to accept the case and we have listed a number of cases that are really gravitating towards this best ensure standard and upholding this and you will see that case after case across the country, the National Conference of Bar Examiners are losing and the courts are finding that this should be providing accommodations because they are not meeting this best ensure standard. The other thing that happened this year that I think is important with respect to licensing and testing is an agreement that was reached with the Department of Justice and the National Board of Medical Examiners. For years, the National Board of Medical Examiners had administered a test that is required in order to become a doctor and if you do not pass this test you cannot proceed with medical school and being certified as a doctor and there are a number of cases including some cases we have handled at Equip for Equality involving medical students who have not been given the accommodations they have sought by the National Board of Medical Examiners, them taking a very narrow view of who is entitled to accommodations. And so the Department of Justice in working with a Yale medical student with dyslexia ended up reaching a major agreement that not only helped that particular medical student but also a broad new policy that the National Board of Medical Examiners will be limited in what they can ask about, and they will also be required to consider the recommendations of qualified professionals. Many times the National Board was not really taking the evidence and reports and recommendations that students were providing to them and therefore they have a much more clear obligation to consider all that information when making determinations whether somebody should get an accommodation and testing and that settlement agreement can be found on DOJ''s website. We have also seen a number of cases brought with respect to the ADA and criminal justice. We often do not think of the ADA in terms of those folks who are incarcerated but there have been some, I think, important decisions that I want you to be aware of. Many of the cases involving criminal justice involve removing barriers, so traditional barrier removal analysis but again under Title II because of them being a state or local government entity. And the Pierce case is one where the county said that removing barriers and increasing access to programs and services would create an undue burden to the finances and security. Here it was a class of prisoners with mobility impairment and dexterity impairment that had--did not have access to showers and toilets and recreation facilities but the defendant, the county did not provide any specific evidence of their financial burden and the court found that there was no undue burden that would be viable here and they should provide the accommodations and modifications that were requested. The Durrenberger case is a case where, I think; I put it in here because it is important to note that not only people who are incarcerated are entitled to coverage under the ADA but also those who are visiting those who are incarcerated. This involved somebody who was visiting a prisoner who needed a phone amplifier or some sort of isolated booth because of their hard of hearing and the Texas Department of Criminal Justice had said that would be an undue hardship and--or an undue burden and the court rejected that argument as well. And then the Minnis case out of Virginia is a class action settlement on behalf of deaf prisoners who are seeking videophones and other accommodations and that case reached a favorable settlement and comprehensive changes are happening in Virginia and we actually in Illinois here, Equip for Equality filed a similar case on behalf of prisoners who are deaf who are not getting the accommodations they need as well. So these are issues that are important to people who have disabilities in the criminal justice system. The other criminal justice issue that comes up is the importance of law enforcement officials to recognize and accommodate disabilities and we had two cases that came down that I think raised this issue involving people with mental illness and what law enforcement does. The Buben case is an example of where there was not proper training or policies and so you had officials, law enforcement officials who arrested a person with mental illness and they had misperceived the effects of the person''s disability as illegal conduct and they ended up tasering them, the person fell off the balcony and because they did not have any policy with respect to people with mental illness that are being arrested or any kind of training, the court found that they were potentially liable under the ADA. And the Hobart case raises similar facts but a different situation in that you had somebody again with mental illness who was being arrested, but the City of Stafford actually had a crisis intervention team and it was requested for the police to send that team when you had a person with mental illness who is in severe distress, but instead of sending a crisis intervention team, they sent an untrained police officer who ended up shooting and killing the person with the mental illness and so the person''s parents ended up filing a Title II failure to accommodate claim that was allowed to proceed because they actually had a policy, they had training and they did not use it. So this is an interesting way of having sort of an ADA overlay on excessive force cases that we have not seen a lot of in the past, we may see more of in the future. People are also probably aware that there is been a lot of litigation under Title II with respect to people who are seeking community living. Either they are institutionalized and seeking to move into the community or they live in the community and needs services to remain in the community and if they do not get those services, they are at risk of moving into an institution. And people will remember that under the ADA, the Supreme Court decision in Olmstead that people with disabilities are entitled to community living if you can show certain factors. One that treatment officials find communities appropriate. Second, that the person does not oppose placement in the community. And third, the fact that it is most often an issue in these cases, that placement can be reasonably accommodated taking into account the state''s resources and the needs of other people with disabilities. And you might remember that the Supreme Court gave this sort of a roadmap on these cases and said that states can meet its obligations under the ADA if it has a comprehensive, effectively working plan for placing people with disabilities in less restrictive settings, as well as a waiting list that moves at a reasonable pace. And so this last year there was a number of cases decided on this issue, one in Illinois that we were involved with others called Williams versus Quinn, and one reason I wanted to bring this up is this is a good example of the ADA being applied to people who are living in private facilities. For awhile, people thought that the Olmstead decision only would apply to people who are living in state-operated facilities but the Williams case makes clear that if you are living in a private facility that receives state funding, states still have an obligation and so this was a case on behalf of people with mental illness living in large facilities, about 4500 people. And after several years of litigation, an agreement was reached that it is going to allow all these folks the opportunity to move in the community and again there is no fundamental alteration argument here because the state was using 100 percent federal money--excuse me--100 percent state money to pay for this institutional care whereas now that they are getting--providing community services, they will be getting some federal matched money to help pay for those services so it would be very difficult for the state to argue that there was an undue--fundamental alteration or undue hardship for them to provide these services in the community on a financial basis. And this is one of three cases that reached a settlement this year. One on behalf of developmental disabilities called Ligas and then most recently one on behalf of people with mental illness and physical disabilities in traditional nursing homes called Colbert. That agreement has not been finalized by the court yet and approved by the court yet and there is a fairness hearing in December but all three of these cases involve people with disabilities living in privately run institutions, privately owned institutions that are funded by state funds and that is why they are subject to Title II of the ADA. Another important decision out of Pennsylvania involved people with intellectual disabilities who are in state facilities and this is important because it is a good case to explain what is a comprehensive effectively working plan that we talked about before. And this case, they found that the State of Pennsylvania did not have one of these comprehensive plans and they said that the fact that they hastily created a community integration plan after the litigation was filed and it only contained general assurances was not enough to meet what the Supreme Court that was necessary and they said it was not a real plan because the state had discretion to disregard the plan terms so this case is actually on appeal so it--we are still waiting to find out what happens there but it is an important decision, I think, with respect to a case actually going to trial and having some court precedent as opposed to a settlement. And then, I also just wanted to point out the U.S. v. Georgia case as an example of the Department of Justice being more active on these issues under the current administration and a comprehensive agreement that was reached in Georgia on behalf of both people with mental illness, as well as people with developmental disabilities that will substantially increase community services and I think it is interesting that it is Georgia because if you might remember that the Olmstead case was originally from Georgia and so obviously, there was still work to be done in Georgia that needs to be done and both the Department of Justice as well as our sister agency, Georgia Advocacy Center, have been working on those issues. The other thing I wanted to point on community integration where we are seeing a lot of the other litigation that we can talk about this in the question session that people have it is that there is significant litigation with respect to the budget cuts, a lot of states are facing budget cuts and many are cutting community services for people with disabilities and putting them at risk of institutionalization and there have been a number of cases that have been brought successfully and that are still pending on behalf of people with disabilities whose services are being cut and are potentially placing them at risk of moving into an institution and courts finding that they do have a cause of action under Title II. We have not had a lot of litigation under the Definition of Public Accommodation, but I wanted to point out one. It got really, really strange facts but I think it raises an important issue. This is a credit card customer who was blind and he claimed after having services by a prostitute that the prostitute overcharged him, and this, you know, taught me that, I guess, prostitutes take credit cards, that was a surprise but in any event, he sued under Title III saying that he had--there have been discrimination because they had fraudulently charged him more because of his disability, he could not see how much that was. And the court said that there was no Title III liability, the credit card company was not a place of public accommodation. If you look at the ADA, they use the word "place of public accommodation" and there is a real split in the courts now. Some courts say that you have to have a physical place in order to be covered by Title III. There has to be a literal physical space for it to be a place of public accommodation whereas other courts have said no, that has not--that has too literal of you that--public accommodation can be broad and can involve places that are not public spaces like credit card companies, or like insurance companies, or like companies that do business over the web, and even though they do not have physical spaces, they can be considered a place of public accommodation and so far, the Supreme Court has not taken one of these cases. In fact, the people--the plaintiff in this case, the Peoples versus Discover Financial Services, they did ask the Supreme Court to review the case but the Supreme Court did deny that so the split in authority that we have in our country is still existing because courts have a different view on whether or not you need a physical place or not. Another thing we see litigation on fairly commonly is the issue of effective communication under the ADA and we have a couple of examples of Access to Health Care, the Adamski-Thorpe case involving somebody who was denied an ASL interpreter on three different occasions. And what I think is interesting here is the court found that the hospital''s failure to provide interpreter did place them liable under the ADA and what the hospital had argued was it is not really discrimination under the ADA if it--if there was no adverse impact on their health care and the court said no, the fact that you, you know, affirmatively refused to provide an interpreter is not like you just failed to act and the fact that there--you cannot show that there was actual harm to the person as far as their medical care, you do not need that level of evidence in order to be actionable under the ADA and I think that has a very positive decision for people with disabilities. The Colorado case is--shows that you actually as a person with disability do not necessarily have the right to request a particular interpreter or from a particular agency which is what the dispute was here and the plaintiff did not provide evidence that the interpreters that they provided were not qualified. They were not happy with the interpreters that provided and they should have gone with this other agency that has better interpreters and the courts said well, here, there was effective communication may not have been, you know, the best communication for you but it was effective and that is really all that is required under the ADA. Also note that on the DOJ website, they reached a settlement involving health care and access to interpreters against the company called Inova, I-N-O-V-A, Health Systems out of Virginia, if you are interested in that issue, there is--it is on the DOJ website. Another issue that is coming up that is really interesting, I think, the whole issue of effective communication when you have emergency situations and the Loye case is an example where courts are going to give counties and cities some slack when they have an emergency situation. You had people who are deaf who said they did not get as effective a communication during emergency response and the court said you know, the evacuation, to have interpreters right at the evacuation was not reasonable because it was such an exigent circumstance and that they did provide effective communication at the later stages of the situation and so they did not take sort of a literal reading that the plaintiffs were saying was that, you know, we did not get as effective a communication as others during the very beginning of the emergency and the court said that that was not required in the ADA. But there was a recent decision involving the City of Los Angeles and the County of Los Angeles where people felt that the emergency preparedness efforts were not sufficient because they did not adequately address the needs of people with disabilities. The Department of Justice filed a statement of interest in that case too and they said ad hoc accommodations are not sufficient, you have to involve people with disabilities in the planning as well as incorporate their needs throughout the plan for emergency so that is an important case to think about that municipal authorities should be looking at as well. You have also seen a number of settlements this year under--for a variety of cases involving access to the web, settlements in cases against Major League Baseball and American Cancer Society, the Law School Admissions Council and Ticket Master that have been brought by a variety of groups including the National Federation for the Blind and those I think just emphasized the importance of making information accessible on the web and one thing, I think, that people are anxiously waiting is what the Department of Justice is going to do as people might remember they put out a notice for proposed rule-making on website accessibility and a lot of people provided comments on that issue and so we are waiting to find out how the DOJ is going to move forward on those proposed regulations. Another issue that comes up, this is probably one of the most frequently litigated issue is can--does somebody--is somebody able to bring an ADA lawsuit under Title III if they are not necessarily going to be returning to the place that had discriminated against them. And, you know, generally, because the ADA does not provide monetary damages, you have to show that you are likely to have future harm to justify the court giving you what is called Injunctive Relief and changing and removing the barriers that you have encountered and if you cannot show that, frequently your case is going to be dismissed, you are going to be found not to have what is called Standing to Sue. So many courts are going to look at the issuer for future harm as to how close do you live at the business, how close the plaintiff--the frequency that the plaintiff would travel near that business, the past patronage of the plaintiff of the defendant''s business as well as the definitiveness of the plaintiff''s plan to return to that business, and if you cannot show that, many courts have dismissed these cases. So you got several cases on the Harty case, the Rush case, and the Wittmann case, all involving people who were not able to proceed with their ADA cases because they could not show that they were likely to return and therefore had standing. The Harty case involving somebody who sued against the mall, they could not found--they found that the plaintiff''s plan to return to the mall was too vague and so they could not proceed with their litigation. Somebody who cannot proceed with their case against the restaurant because they did not actually incur--encountered the barriers personally and partially because they could not get in the restaurant, they could--but they said if you cannot--if you do not encounter the barriers yourself, like an inaccessible washroom or other barriers because you cannot get in there in the first place, you can only sue for the barriers you encounter. Many courts have said. And again the Wittmann case is another one where the person who had a dispute against the hotel and the lack of access for service animal could not bring suit because they had no clear plan of returning to that hotel in the future. But courts have found that some people do have Standing to Sue under Title III, the Chapman case is a good example of that, and this one actually the court went pretty far. They found that a shopper in a wheelchair who had encountered barriers could sue against not only about those barriers that they found on Pier 1 Imports but also the barriers that they did not personally encounter so they had barriers at the entrance and then did not encounter the actual barriers that they knew about in the, maybe, inaccessible washroom or something like that, the court said you can sue for all barriers that exist even if you do not personally encounter them. That has probably the minority opinion but I think it is good to see that there are at least some courts that are taking that position from a disability advocacy standpoint. The other case I wanted to point out is that courts have allowed organizations to bring suit as well. A group called Equal Rights Center had filed suit against Abercrombie & Fitch for its barriers. But know that they said that the--while the organization could bring suit, they could only bring suit about those where the organization''s members had actually suffered harm so if there were certain locations they had not visited even if they had the same types of barriers, they could not sue against those barriers, only the barriers that their organization members had actually encountered, which I think is probably the more typical scenario under these cases. You might remember last year, we talked about an issue regarding sidewalk accessibility and the Frame case is one that has been around for a lot of years, there has been a lot of different decisions but I think we finally have a final decision in this case. This is one involving people who use wheelchairs who felt that the City of Arlington did not make its curbs, sidewalks and parking lots accessible and they sued under Title II. One of the issues in this case was when does the statute of limitation run? The previous decision had said we find for the city because we think the statute of limitations began when the sidewalk was constructed and if the person did not bring suit within 2 years after the sidewalk was constructed, they could not bring suit under the Title II. But the court agreed to re-look at this issue, they had what is called a Rehearing En Banc which means not only 3 judges look at this issue but all the judges for the Fifth Circuit would look at the issue and after having that rehearing, the court changed its mind, and said, we think that the statute of limitations should actually begin to run when the plaintiff knew or should have known about the inaccessible sidewalk. So rather than looking at the date of construction, we look at the time when they actually encountered the barriers or should have known about the barriers, and if you look at it that way, they did bring suit within 2 years and therefore could proceed with their ADA claim. The other issue that was raised in this case which I think is also a very important one is whether or not sidewalks and parking lots and curbs are considered services under Title II. The lower court had said no, it is not a service, it is really just part of the infrastructure that provides you access to other services that the City of Arlington provides. But the majority here said no, curbs and sidewalks and parking lots are in and of themselves services and do have requirements to provide accessibility, so this is a major decision. This court had really been bucking some of the other decisions across the country and this decision, I think now, puts the Fifth Circuit in line with the majority view across the country that sidewalk accessibility is something that municipalities do have an obligation to provide and that the statute of limitations does not begin to run until people encountered the barriers or should have known about the barriers. The other issue under Program Accessibility I just wanted to point out real quickly was just that there is a decision settlement that was reached in a lottery case. Many Title III entities, retailers are inaccessible but it is oftentimes inefficient to address those access issues store by store by store. So one of the common factors in some of these small retail stores is that they sell lottery tickets which is a state program or service, and so one of the theories has been file suit against the state under Title II instead of against the entity, the retailer under Title III, and you are claiming that there is no program access because of the inaccessibility, there is no access to the lottery program and if you provide access to the lottery program, people get access to other things that are in retail stores like bread and milk and things like that. And courts have been looking at this issue and the Virginia case is an example where the lower court had found against the plaintiffs but ultimately, a settlement was reached in which all new lottery operators must be accessible within 12 months, all existing retailers have to be surveyed every 3 years, and any necessary modifications up to a thousand dollars must be completed within 12 months which is going to vastly increase the accessibility in Virginia. A very similar decision was decided in the District of Columbia, equal rights center of D.C. where the court found that the program--that the lottery program was not, in looking at it in its entirety, was not accessible to people with disabilities. And then the last issue is we have had some cases on transportation under the ADA. One of the main cases earlier this year is Disabled in Action versus SEPTA from Pennsylvania and that raises the issue of what happens when a transit agency makes alterations to some sort of a transit station. What obligations of accessibility kick in at that point? And the court here found that the transit agency did violate the ADA when they failed to add elevators when they were renovating train stations. They had removed staircases and rebuilt staircases and removed escalators and rebuilt escalators but they had not installed any elevators and because they were addressing usability of the station, that did trigger access requirements and therefore, the court ordered that they had to install the elevators and that the feasibility exception that the transit agency had raised was not applicable because it was possible to make it accessible. It was not infeasible as they claimed. You also have DOJ getting involved in a settlement agreement in Mass--excuse me--Mississippi and that was involved both mainline as well as paratransit and reached an agreement that the City of Jackson is going to have to maintain wheelchair lifts of mainline buses and train personnel to assist people with disabilities, and meet the required level of service to paratransit, so that is an interesting case because you often do not see mainline and paratransit cases being brought together. And then the last case is another Department of Justice case along with the Department of Transportation and this involved a private bus company as opposed to public transportation entity and they had only one accessible bus in their fleet of 53 buses. The ADA regulations require that at least 50 percent of the carrier''s vehicles are accessible and they clearly were not meeting that and in fact the company had just recently purchased some non-accessible buses and they had no wheelchair maintenance program at all. And ultimately, they reached an agreement in this case that is going to require the Tornado Bus Company to upgrade their bus fleet to meet the accessibility requirements as well as to pay a fine that was imposed against them. So those are the cases that we want to talk about, we have got some resources available for you, the ADA National Network, the Department of Justice, the Job Accommodation Network, the Equal Employment Opportunity Commission as well as our national association, the National Disability Rights Network, that all have information on the ADA, and then we also want to make sure that you knew about the ADA Case Law Database which is a service where you can go on and search for ADA case summaries under the different titles and that web address is www.adacaselaw.org, so if you are looking for a particular case that come down that you heard about on the news or you want to find out what the case lies in your particular area or involving a particular disability, just log on and you can search and find cases that might be of interest to you there. So, Peter, we can--I think we have a little bit more time, we can--see if anybody has questions either under Title I, or Title II, or Title III.
Okay, we have got a few minutes before the bottom of the hour. Jamie, if you could come back on one last time and give instructions for folks that are participating by phone and those of you connecting using the audio streaming or caption--captioning, you can submit your questions in the chat area now.
Again, ladies and gentlemen, to ask your question over the phone, please press star 1. And it looks like we do have one question so far, would you like to go ahead with the phone question first?
Yeah, let us go ahead and take that one.
Okay, the callers question.
Hi Barry. Since I am the only one is it okay if I ask 2 questions?
Well, go for it.
Simple when you were talking about the bus company case, I may have misheard, I thought I heard you say something about they had--did not have a wheelchair repair program? The maintenance program or something?
That was just one of the facts that that was--that DOJ was saying was lacking was they did not have any kind of wheelchair maintenance program as far as maintaining buses and with the one accessible bus that they had, they did not maintain the lift--
Oh you mean the lift? I thought you meant wheelchair repair, not wheelchair lifter.
Oh I might have misspoken, I meant lift repair for wheelchairs.
That makes me feel better. Okay. Now, for the other one.
Sorry if I misspoke.
No, no, no. I probably misheard it. The other one was speaking about Title II going back to the Frame case. You have a municipality, let us just say, a hypothetical municipality that has going to host the democratic convention. BARRY TAYLOR: Okay
And there are row out garbage is the requirement in the community and once a week, people put their garbage cans on the sidewalk which creates a barrier. The city does not have any policy or procedure for insuring that homeowners keep the sidewalks open during that one day a week. How would you respond to that and do you think we could use Frame on that one? We used Bardin and we did not get very far.
Right, I mean Frame is very similar to Bardin, it is the same type of issue and I do think there is an argument there that you have a responsibility to have some sort of policy in place to ensure access whether it is because of garbage or whether it is because of snow removal that we have in the northern states more often that there is a requirement of--that there be accessibility on sidewalks, and there was a case in Indiana where they--what they had was--it is not quite the same but what they were doing was they had an ordinance that allowed people to--it prevented people from parking their cars where it interfered with the sidewalk, and ultimately, they had rescinded that because of complaints about it and ultimately, some ADA issues were raised and they ended up putting that back in place because they felt that there was potential violations of the ADA by allowing people to park that blocks sidewalk access, and so I think, you know, that there could be an argument being made that there needs to be some sort of policy or procedure that ensures that there is access for people on all days of the week including garbage day.
Thank you. PETER BERG: Alright. Thanks for your question. Jamie, do we have another question?
I show no further questions.
Alright, let us go back to questions from the chat area. Barry, going back to unemployment cases, someone wants to know under the ADA Amendments Act and the expanded list of major life activities whether or not driving would be considered a major life activity.
That is a great question. Driving is not listed in either the text of the ADA or the EEOC regulations and most courts have not found driving to be an essential function. One reason why people often wanted driving to be involved was because certain disabilities, for instance, people with epilepsy had issues with respect to driving. And I think what I would suggest for people who have disabilities that affect driving is to look at what other possibilities there may be besides driving because I think driving is--you can certainly plead it but I think based on the way the courts have interpreted that issue, it is likely to lose. But, for instance, somebody with epilepsy, instead of saying the major life activity of driving, you could say the major bodily function of the neurological system or the brain, and that ties to epilepsy much more clearly than--and easily under the courts than the major life activity of driving so I would not rely on driving exclusively and look at these major bodily functions as a better way to bring an ADA case.
Okay. Excellent. Question from the chat area, someone wants you to talk about the rule of sovereign immunity in Title II cases.
Oh that has a webinar in and of itself. [ Laughter ]
I mean--the short answer is that we do not have a definitive answer from the Supreme Court. The Supreme Court said that states are immune from cases in federal court for money damages under Title I for employment. But when it comes to Title II, you might remember we had the case, the Lane case involving people court access and the court said there is not sovereign immunity involving cases involving access to court, meaning that you can bring suits for money damages in federal court against states. However, the Supreme Court did not say that applies to all activities in Title II and said you really have to look at sort of the history of discrimination in a variety of contexts and there is been a number of cases that have come down since then the courts are really all over the place, some finding for instance that educational institutions are immune, and others finding that they are not based on the history of discrimination or lack thereof and so it is a pretty complicated area. Generally under Title II, courts, you can bring suits for monetary damages against courts but other Title II areas are a lot more sort of open for interpretation. And if the person has, you know, more detailed question, they can contact me directly. And speaking of contacting me, that has a good segue, is that if we do have any attorneys that are on the call in Illinois because we are an Illinois continuing legal education provider, we can give you 1.5 hours of continuing legal education credit so in order to get that all you have to do is email me and my email address is email@example.com and we can take care of that and if people have other questions that we cannot get to today, you can email me as well. Just recognize that we at Equip for Equality are limited to serving people with disabilities in Illinois and so we may not be able to assist you if you are not from Illinois but we can maybe potentially answer a quick question or refer you to our sister agencies in other states, if that would be applicable.
Excellent! Well, thank you very much, Barry. We are at the bottom of the hour and out of time for questions. As Barry mentioned, he gave out his contact information. If you are outside of the State of Illinois, you can always contact your regional ADA center by calling 800-949-4232 as well. Barry, always great information, always enjoyable having you as a presenter and thank you very much for joining us today, we appreciate your time in preparing for these sessions and also the presentations themselves.
Please remember to complete the evaluation from today''s--for today''s session. You can get that in the session materials section of your account. We appreciate and we really do review the feedback that you provide to us. It helps us going forward with the program. We hope that you will be able to join us on November 15th for our next audio conference session titled Can You Hear Me? Ensuring Effective Communication for your Customers. You can get more information about that session at the ADA Audio Conference website, www.ada-audio.org or by calling 1-877-232-1990. I want to thank all of you for participating--
Peter, I think--I think that number was--I think there was a mistake on that number.
Oh I am [inaudible], it is 877-232-1990.
The slide says--the slide says 866, I am not sure which is right, but I just wanted to point that out.
Oh it does, okay. Yeah. Sorry, It should be 877--no, thanks for--thanks for--
Thanks for catching that.
Alright. Well, thank you very much everyone for participating. If you participated through the audio streaming and captioning, you can exit the webinar session by simply closing your browser window at this time and participants by phone can simply hang up. So thank you all for joining us and we hope to see you all on November. Thank you and have a great day.
Thanks everybody, bye-bye.
Ladies and gentlemen, that does conclude the conference for today. Again, thank you for your participation [inaudible]. Have a good day.