Good day ladies and gentlemen. And welcome to the Americans with Disabilities Act (ADA) case law update conference call. At this time all participants are in a listen only mode. Later we will conduct a question and answer session and instructions will follow at that time. If anyone should require operator assistance during the program please press star and 0 on your touch tone telephone. As a reminder, todays conference is being recorded. I would now like to introduce for todays conference call, Ms. Claudia Diaz. You may begin Maam.
Good afternoon everyone, my name is Claudia Diaz and I will be moderating today''s session. Before we get started, I just want to go over a couple of new webinar features. You may have noticed this is a new webinar platform. If you look on the left side you will see a couple of boxes, one labeled audiovisual and one labeled participants and one labeled chat. Each of them has a particular little drop arrow on the right side with lines to it that is a menu option. You can go and select that and see what features you have available to you. In the audio video box if you look to the right side you will see Closed Captioning icon which is the CC icon. You can click on that if you are interested in using the captioning service at this time or you can do the keyboard command of control F. Also want to remind people to hold your question until the designated question and answer portion of today''s webinar. We do have the chat area available. So you can put your questions in there during that designated time and we will also be taking questions during telephone as well. One last thing I would like to ask our participants is to refrain from using the emotion icons as it can be distracting. Today''s presentation is the ADA case law update and it is being presented by Barry Taylor and Alan Goldstein from Equip for Equality. Equip for Equality is the legal advocacy center here in Illinois, and they have been with us for a number of years. At this time I would like to pass it over to Barry and Alan for today''s session. Alan go ahead.
Hi this is Alan. Thank you, Claudia. So Barry and I are going to be doing this session today. I am going to be covering the first half, which will be covering ADA Title I and Barry will cover the second half, which will be Title II and III. Any Illinois attorneys joining us today are eligible for CLE credit, as slide 4 indicates, and you just need to send an e-mail to Barry Taylor and his address is there. Barryt@equipforequality.org. We will repeat this slide at the end. Here are the Title I issues we are going to discuss today that I will be covering. We will talk briefly about the ADA Amendments Act and look at some new cases there. We will look at some reasonable accommodation cases, cases covering qualified issues or essential job function issues, cases on medical inquiries and examinations, disability harassment, and then the ADA Supreme Court Case of 2012, the Hosanna-Tabor with the ministerial exception, which we will explain as well. For the second half, to be covered by Barry, we are going to discuss Title II and III and the issues here are listed on slide six. It will be education, professional licensing, public services, community integration, criminal justice, transportation, voting, public accommodation access, and standing to sue. So as you can see, we do have a lot of topics we are going to cover. Today''s audio conference - we want to hit a lot of cases and kind of give a broad overview just touching on all the cases. For people who want more in-depth analysis on the cases, I urge you to look at the Great Lakes ADA center''s webinar that Barry Taylor will also be participating in for the upcoming year and you can get more in-depth on those cases. So the first topic will be recent litigation under the ADA Amendments Act. And just so people are clear, the ADA Amendments Act really only goes to the definition of disability. It is the versions regarding reasonable accommodations and the other non-discrimination provisions stay the same. And so that is the changes that have been brought by the ADA Amendments Act. So what we have been seeing since the Amendments Act went into effect on January 1 of 2009 is that courts are following Congressional intent this time around, Which was that the definition of disability should be interpreted liberally, to ensure maximum coverage, and that is what the courts are doing. In the state of Murray, the court allowed the case to continue although there was a sparse record regarding the clients depression condition. But because the ADA Amendments Act (ADAAA) commands court to interpret the definition of disability broadly, the court allowed the case to proceed. And in the Kravits case, on the bottom of slide 8, the court again looked at congressional intent and that the focus on ADA cases should admittedly covered entities have complied with their obligations and the fact, whether or not, the individual''s impairment is a disability under the ADA should not demand expensive analysis. In the Allen case, this is a court going the other way, one of the few cases where a person was found not to be disabled under the ADA, and I think part of the issue here is because the person was using a substantial life activity of working. Saying they were substantially limited in the major life activity of working, which is generally one of the tougher major life activities to proceed under. So if you can get it under either the major bodily functions under the ADA Amendments Act, that says, you know, cell function or brain function or you can get a case under one of the other major life activities. Working should be avoided unless it is the only major life activity applicable. Well we see why in this case: where the court rejected the plaintiff''s argument that she was substantially limited in working under the ADA because her migraines did not attempt to limit her in a class or broad range of jobs. This is the same language that was in the ADA before it was amended regarding looking at a person''s ability to work in the class or broad range of jobs. Equal Employment Opportunity Commission (EEOC) had looked at changing that language but they did not. The court went on to say that the argument concerning the impact of --for migraine headaches and the impact of the headaches on sleeping was not developed below. And it was mentioned only in passing in appeal for the court refused to consider it. I think that is a way the Plaintiff makes sure that they put in all the evidence about disability necessary. And the court also went on to say that the evidence shows the migraine, even when active and treated with medication, did not permit her to perform the activities to care for herself in the evenings and compel her to go to sleep. Instead, the court felt this point was too conclusionary and again, I think the plaintiff might have done themselves a better service by introducing more evidence in this case. And that is our tip: is to provide as much specific information as possible in how the impairment substantially limits the major life activity. In looking at the next issue, right where it has to be a physical or mental impairment that substantially limits a major life activity. If you look at the second component, the substantial limitation on these two cases, on slide 10 in the Eldredge case, the court said that the plaintiff with permanent progressive eye disease that caused a small blind spot, negatively impacted her central visual acuity and therefore the plaintiff was substantially limited in seeing. And then the Barlow case, the court under the Plaintiff with muscular skeletal impairment was covered under the ADA Amendments Act, because, impairment may not prevent or significantly or severely restrict the individual from performing a major life activity". The more liberal you consider substantially limiting, again the more liberal the definition of substantially limiting under the Amendments Act while working for the Plaintiff here. Slide 11, we look at episodic impairments prior to the Amendments Act. It is very difficult for people with episodic impairments to show that they were protected under the ADA and the ADA was amended, this was remedied because Congress now says you look at episodic impairments when active and if an episodic impairment substantially limits a major life activity when active, then it will be a disability under the ADA. So in the Molina case the court felt that the back impairment was a disability where the pain is variable and would be covered under the ADA Amendments Act if it was substantially limiting when active. And in the Katz case, the job applicant was not hired after identifying herself as a breast cancer survivor. The court defined that after the ADA Amendments Act, it does not matter that the cancer was in the initiative at the time of the legislation. When the cancer was active, the court went on substantially limiting. In slide 12, the Amendments Act also changed drastically the regarded as prime of the ADA were employees no longer need to show their employer regarded them as being substantially limited in a major life activity. And that is what the Wells case said, that the Plaintiff is no longer required to prove that the employer regarded her impairment as substantially limiting a major life activity. A person just needs to show that the employer took some adverse employment action based on a perceived or actual impairment. And in the Dube case or Dube, not quite sure, and I quote, the defendant relied upon cases applying a much narrower pre ADA AA definition regarding that as disabled which are not relevant. And I actually see that on cases that I worked on as well. Where defendants write a brief saying that it is not a disability but they are looking at case law pre ADA Amendments Act, which I think is no longer applicable. I think most of the courts see it that way as well. Moving on from the Amendments Act we are going to look at recent litigation on reasonable accommodation. Always an area where there are lots of issues and I think where both employers and employees can better learn their rights and obligations in this area. So in the Cox case, an employee sought reasonable accommodation from returning from leave following an injury at work. We are going to see a bunch of situations where are issues with people coming back from leave. A lot of ADA issues come into play. Wal-Mart rejected the person''s request for accommodations because she did not file the correct form. But Wal-Mart did not advise her of the error and Wal-Mart also refused to extend the five day deadline for submitting paperwork. And the employee actually had a good excuse but they responded to a court subpoena. And the court said that this -- these actions by Wal-Mart could lead to reasonable jury to find that Wal-Mart failed to engage in the interactive process in good faith. And again that is a very important consideration is that both sides need to engage in the interactive process. And some more cases in the interactive process. In Valdez, an employee with cancer alleged the employer failed to engage in the interactive process when requested additional leave. Then the court said that in light of his diagnosis with colon cancer, and his frequent absences and inability to return to work, according to an earlier physician''s note, was uncertain that the employee would be able to return to work on the day proposed and requested for additional leave. And the court found the favor of the employer. Under the ADA, an employer is not required to engage an employee in the futile interactive process. Employees still need to show that any accommodation they seek including leave will enable them to become qualified. So an employee needs to try to specify a definite period of leave where it is reasonably foreseeable they would be able to return to work. And in this case, the Valdez case, the evidence did not support the fact that the employee would be able to return to work within a reasonable time. And in the Fisher case, the other thing to keep in mind is that an employers refusing to engage in the interactive process does not mean the employee automatically wins their case. The employee still needs to show that they would have found a reasonable accommodation if the employer did engage in the interactive process. And that was the holding in the Fisher case at the bottom of this slide where the employee failed to show that even if the employer engaged in an interactive process, that there was an effective reasonable accommodation that would have been arrived at. A big case came down in the 7th Circuit in EEOC versus United Airlines, and this case stems from the Supreme Court''s decision back in 2002 in U.S. Airways v. Barnett. Where the court held that if an employer has a reassignment policy whereby reassignment is given to employees based on seniority then an employer would not have to deviate from that policy to place someone in a position under the ADA as long the employer consistently followed that reassignment policy. But the issue had come up then in reassignment is that an individual with a disability who is no longer able to do their old job is automatically placed in a position that''s vacant and that they are qualified for? Or do they mean the employee has the ability to apply for that position? Employers argue that if a person is automatically placed in a position, they may not be the most qualified candidate and that would be akin to affirmative action because then the employer is required to put someone in a position who might not be the most qualified. On the other hand, employees argue that if a person with a disability is only allowed to compete with a position and is not given that position then that is not really a reasonable accommodation because anyone from the public can apply for that job. And there is a split end of circuits with reassignment means. When looking at the EEOC versus United case, United had the policy that employees with disabilities who could no longer do the essential functions of the current job could only compete for open positions as a reasonable accommodation but were not entitled to be placed. In the old case on the Seventh Circuit, under a case EEOC versus Humiston-Keeling, it tells that the person only gets to compete for the job. They do not get placed immediately in their position. In the EEOC versus United Airlines case the EEOC took the, I think incredibly smart and wise, step of asking the 7th Circuit along with all the appellate court judges to reconsider the Humiston-Keeling case in 7th Circuit precedent on reassignment. And as a result the court overruled Humiston-Keeling and held that the ADA mandates that an employer appoint the employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship. So that means now in the 7th Circuit, if someone is entitled to reassignment as a reasonable accommodation, they get that vacant position not just the right to compete for the position. So the split now is the 10th Circuit, the D.C. Circuit, and now the 7th Circuit have held that people get placed immediately in the position. Only the 8th Circuit has held that the people only get a right to compete for vacant positions but the 8th Circuit had based their decision on the Humiston-Keeling case whom the 7th Circuit that this case, United Airlines, overruled. So the issue is: is the 8th Circuit going to change their position, in which case you would have unanimity among circuit courts that have decided the issue and give people the right to immediately be placed in vacant positions. So that case -- Hopefully I explained that clearly - the bottom line is in the 7th circuit now and in three out of four Circuits that decided the case, employees seeking the assignment can be placed into vacant positions they are qualified for rather than just competing for those positions. Next slide is slide 17, the Sanchez case, this employee assisting brain damage; they had a traumatic brain injury after a fall at work. She requested transfer to a location where she could obtain better medical treatment, which is a somewhat unusual basis for seeking accommodation. In this case the employer denied the request, arguing that a transfer is not required when the employee can perform her current job''s essential functions. And the appellate court moved in favor of the employee. They said a transfer accommodation for medical care or treatment is not per se unreasonable even if an employee is able to perform the essential functions of her current job without the transfer. And they analyzed the case to the EEOC''s interpreted regulations. And the courts own decision is saying a leave of absence can be a reasonable accommodation for people and they saw the transfer as being a similar type of reasonable accommodation because it is facilitating medical treatment. The next case we have is another case from the 7th Circuit, Miller v. Illinois Department of Transportation and an issue we see post ADA Amendments is our essential functions issues. Because an employee needs to be qualified with or without a reasonable accommodation and needs to be able to perform their job''s essential functions. But then the question comes up: if there is a crew or a group of people who perform functions, does each individual in that crew need to perform every job function of the crew or can the crew divide up some of the job functions so that some employees perform some functions and some employees perform others. And in this case, the Plaintiff, a highway maintainer on a bridge crew, alleged that his employer refused his request not to work at high height, pardon the redundancy, and exposed positions as a reasonable accommodation for his acrophobia. Well he had acrophobia but he was able to do the other work of a bridge crew without working at extreme heights. The accommodation was denied as they said he had in-performativity function for highway maintainers. But the court held that the plaintiff''s case can proceed and the evidence demonstrated that the employer had informally provided the request of accommodation anyway and he allowed other crew members to perform non-essential tasks when the Plaintiff could not do so. And even beyond that the court said, and I will quote here, that the bridge crew worked as a team. No one person was assigned permanently to any one task although individual members of the team did various tasks as needed. There was no requirement that bridge crew members work went from task to and task in an organized, routine fashion, such as it was necessary for any one crew member of the bridge crew to be able to do every task of the bridge crew as a whole. And in this case Mr. Miller presented strong evidence and the court acknowledged that the team accommodated the various skills, abilities, and limitations of the individual team members by organizing itself according to those skills, abilities, and limitations. And one person on the team could not weld so the other members did the welding when required. Another coworker would not ride in the snooper bucket. So those tasks went to others when needed and the same thing applied to the task of bridge spraying, yard mowing, and debris raking for a crew member with allergies. So the court said the fact that some members of the bridge crew had to be able to work at heights does not mean that each member of the bridge crew needed to work at heights. And I think this is important in a lot of work settings not just for people working on highway bridge crews. For example, in grocery and drug stores we had a case where a cashier worked in a camera counter and one of the extra job duties was they had to walk throughout the store to put things on shelves which our client was not able to do due to her Multiple Sclerosis. And we argued that other staff could do that function. She was in the camera counter, she could do work around the camera counter, which was required of her and because there was a team on duty, other staff could do the work throughout the store. And we ended up being able to resolve that case but we looked to the Miller case here for support in arguing that. So I think this case is very important and gives plaintiffs a stronger argument to make when looking at job duties of a team. Moving onto slide 19, in the Johnson case a teacher sought an accommodation of being permitted to teach despite not having a current teaching certificate. And the court held that an employer does not have to give a reasonable accommodation to allow an employee to meet the job prerequisites, the qualification standards. That is something that an employee needs to meet in order just to be eligible for the job. So waiving that certificate was not a reasonable accommodation. Now we are going to look some more at some qualified essential function issues. In the Feldman case, a plaintiff with fibromyalgia and sleep apnea sought reasonable accommodation of working the day shift and not having to rotate shifts and to work overtime. And the court found in favor of the plaintiff, that there were triable questions of fact as to whether the plaintiff was disabled under the ADA. As the plaintiff presented testimony, medical testimony, demonstrating the gravity of the sleep apnea and why it required a change in his work schedule. The court also found the existence of a triable question of fact as to whether working overtime and rotating shifts were essential functions of the plaintiff''s current job or of any job to which the plaintiff sought transfer. So sometimes things like overtime, when needed, are put in the job description but the reality is that the overtime is needed once every couple of years. So the courts sometimes find that even if it in the job description that might not be essential if it was not a natural function that was consistently performed. So the courts do look at the facts on the ground. And another case looking at the rotating shift issue, excuse me, the employees resource coordinator here - the employee''s resource coordinator with diabetes was - the position was an employee resource coordinator - had diabetes and sought a reasonable accommodation of not working a rotating shift. The employer argued that they needed to have - or rotating shifts considering they were employed to provide 24/7 coverage. And the court sided with the employer fighting that working rotating shifts is an essential function of the resource coordinator position. The plaintiff pointed out other facilities that permitted employees to not have to work rotating shifts but those facilities provided different services of the court felt that was not relevant and the undue hardship in this case was there were financial hardship and administrative hardship. Remember undue hardships denied as significant difficulty or expense so an administrative hardship would be finances significant difficulty portion of that definition. And the court here found that the accommodation would require other employees to work more night and weekend shifts, which may not be reasonable if it causes complaints and effects morale. Although I do believe there is some EEOC kindness to the fact that employee - the morale of other employees without disabilities is not a basis for denying a reasonable accommodation. But here the courts thought that there would be that administrative difficulty, which makes accommodation and undue hardship. In the Rosenbrough case, the employee was born without a hand and was training to be a school bus driver. He did not need to have a Commercial Drivers License, a CDL, to drive a school bus although part of the training for the school bus driver was to schedule an employee for the CDL exam. The employer refused to schedule her and made derogatory remarks but the District Court held the employee could not proceed with their case. That the lack of a CDL, that they were not qualified to be a bus driver even though the CDL requirements fit into the training was not actually required of school bus drivers. However, the Court of Appeals reversed the District Court, finding that there could be no logical basis requiring for her to have a CDL to be otherwise qualified for the position of trying to obtain a CDL. Pretty much a catch 22 situation, not having a CDL was not necessary for the employee to perform the essential functions of her training position. And now we are going to look at recent litigation on medical inquiries and examination and as you may remember, the EEOC divides employment into three stages for medical information to be sought by employees -- to be sought by employers, excuse me. Pre-employment employers may seek no medical information. Zero, zilch, butkis, nada, nill information! After extending a conditional offer of employment, employers can get medical information if they obtain the information from everyone applying for that position. But they can only exclude someone from that position or withdraw their conditional offer of employment if the reason for doing so is job related and they can be put through a series of tests. So they need to show a person is unable to perform functions or unsafe. But once an employee is on the job and a city employee, an employer can only get more medical information if there is a reasonable basis to do so. So in the Kroll case, a city employee was required to obtain and pay for psychological counseling. He refused to do so and was fired. They claim that counseling is a medical examination of the ADA and that the termination was in retaliation for her refusal to undergo counseling. The District Court held that psychological counseling is not a medical exam and therefore the ADA did not apply but that was reversed by the 6th Circuit which held that mandated counseling could be seen as an attempt to uncover mental health defects - their words, not mine - and therefore is a medical examination. The employer could still show that the medical examination was job related and consisting of business necessity and therefore lawful-- but they would have to make that showing in order to be victorious. Slide 26 the Seff case, an employee brought a class action by alleging the county''s wellness program violated the ADA by requiring participating employees to undergo medical exams and answer certain medical inquiries. Employees who did not participate were charged a penalty $20 a week. Information gathered from the exams and questionnaires were used to identify employees who had one of five diseases. And in a case with that big a staff I find a little surprising the court held that this did not violate the ADA. They went to the safe harbor provision of the ADA which allows for wellness programs that are terms of a group health plan to be protected from violation. So the Countys wellness program was a term of the group health plan the court held it fell under the ADA safe harbor provision and then therefore charging the employee the $20 a week was acceptable. For people not living in the 7th Circuit, I could easily see a court deciding the other way on this issue. So I have a feeling this might not be the last word on wellness programs but this is the recent case on it and in favor of the employer. And then we have the announcement here that the settlement of Department of Justice (DOJ) looks closely at medical inquiries and while the confidentiality mostly is under Title I. The DOJ does get involved in some situations here with an employment situation involve police officers, firefighters, EMTs, and civilian employees who were subject to inappropriate and intrusive medical and another discrimination. And to resolve it, the county had to pay almost half a million dollars in damages plus benefits and adopt new policies and procedures; refrain from using the services of medical examiner who conducted the overbroad medical exams in question; cease the automatic exclusion of job applicants who have insulin-dependent diabetes mellitus; and provide ADA training to all current supervisory employees and all employees making personnel decisions. And the ADA training is always key. Ive seen employers could save themselves a lot of ADA situations by making sure there staff is trained. We have a link on slide 27 to the Department of Justice settlement. A case looking at medical information direct threat on slide 28, the Sanders case, an employee was required to undergo medical examination after he supposedly made threats in the workplace. It was later determined that the threats were unfounded but the employer still required the medical exam. The employee sued under ADA for improper medical exam and the employer raised a direct threat. And the court held the employee''s case can proceed as there was a question of fact whether the business necessity for the examination still existed. And that is because the threats were unfounded. If a person actually did make threats of harm in the workplace then I think the employer would likely win that case but here is a factual question to where the threats actually were made. I think that undercuts the employer''s case. And that''s what the court held. And now we will look at harassment and we have a note there on the bottom of the slide, that there are - there is a brief on the Great Lakes ADA Center on harassment; that there is actually a whole list of briefs under a variety of ADA topics. I encourage people to look at the legal resources on ADA Great Lakes.org if you want more information on any of the topics presented today. The legal standard for disability harassment, there are five factors in harassment claims. One, the plaintiff must be a qualified individual with a disability. Two, they must be welcome or subject to unwelcome harassment as opposed to welcome harassment. The harassment must be unwelcomed. The harassment must be based on the plaintiff''s disability, and this is the -- the fourth condition is the hardest. It is the harassment was sufficiently severe or pervasive to alter a term or condition or privilege of employment. And we see a lot of cases where, to many of us, the harassment seems severe and pervasive but the courts have found that it does not meet the legal standard to constitute ADA harassment. And the fifth factor is that there must be a factual basis to impute liability for the harassment for the employer. That is the employer knew or should have known of the harassment and failed to take prompt, remedial action. A recent case in Davis vs. The Vermont Department of Corrections, a prison guard injured his groin and testicles at work. During his recovery leave, his supervisors sent two, staff-wide offensive e-mails containing pictures that referenced the guard''s injury. One of the emails contained a picture of an individual with his testicles showing. With the employee, Mr. Daviss face superimposed on the individual. And these emails, also seen by staff, as well as inmates, remember he is a prison guard, a position where safety of the employees can be paramount. When Mr. Davis returned from leave he received a note in his mailbox stating: how is your nuts? Kill yourself. You are done. And despite the scary thing of the note, it was actually not grammatically correct either. He also received an e-mail with a cartoon of a person with a gun to his head captioned kill yourself. And as a result of the e-mails being spread around, Mr. Davis was ridiculed by prisoners who grabbed their testicles and made comments like good luck making kids with that package. The court said the incidents, in this case, were sporadic but here the court found that they were severe. And that the conduct could constitute disability harassment. It was perpetuated by his supervisors and it interfered with an essential function of the job of maintaining control of the prisoners. The court will announce that prison guards must rely on their co-workers to stay safe and this was compromised when the plaintiff was ostracized by his coworkers. And furthermore, courts have generally held that prison officials are not responsible for the conduct of inmates but here, in this case, the inmates would not have known about the guard''s disability if his supervisors had not disclosed the injury. And the court compared the situation to an employer tolerating sexual harassment. Some other recent cases of harassment and constructive discharge, the Schwarzkopf case, the court allowed the hostile work environment claim of an employee with depression and anxiety disorder to move forward because the courts found that he was subject to a significant number of negative comments related to his disability, often in the presence of coworkers. The court went on to hold a reasonable jury to find that the adverse treatment he endured was sufficiently severe and pervasive to constitute harassment based on disability. And then the McKelvey case, the 6th Circuit Court of Appeals held that ongoing taunting and derogatory name calling over a nine month period of a soldier who lost his hand in battle could amount to a constructive discharge claim. The court also held that reinstatement, rather than front pay, is the favored equitable remedy for constructive discharge. So you see here, a few favorable harassment cases that is a signal that maybe harassment is getting easier to prove where before it had been very, very, very difficult. It might be too early to tell, but at least recent cases do show a little bit of a greater understanding about harassment based on disability in the workplace. And now we are going to look at a Supreme Court case on the ADA, and what may not be the most known provision of the ADA, the ministerial exception. And in this case Hosanna-Tabor v. EEOC, the court looked at this exception and courts have fully recognized a ministerial exemption grounded in the First Amendment. That precludes the application of nondiscrimination of employment laws, based on - you know, coming from the Civil Rights Act, to claims concerning the relationship between a religious institution and its ministers. And, you know what the Supreme Court said about this, it is based on the First Amendment, and what the Supreme Court said, was the decision that is, and I quote: By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious groups right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will administer to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. So the court actually found both prongs of the religious aspect to the First Amendment violated both the Free Exercise Clause and the Establishment Clause. But I want people to think for themselves. If religious organizations are prevented from discriminating based on disability or race, is that really undue government interference with a religious organization? Possibly, but I urge people to think that issue through for themselves and think about it. In this case the employee was a teacher at an elementary school operated by the Lutheran church. She initially worked as a lay teacher but then went through a process to become a called teacher. She taught math, language arts, social studies, science, gym, art, and music. And also led a religion class four days a week, led students in prayer and devotional exercises each day, attended a weekly school-wide chapel service, and twice a year led the chapel service herself. She then took a medical leave but when she tried to return, she was told her position was filled and that the school did not believe she was ready to return to the classroom. She told the school she had spoken to an attorney and intended to assert her legal rights and she was terminated soon thereafter. The EEOC filed suit on her behalf under the ADA. The District Court dismissed the case under the ministerial exception and the 6th Circuit reversed the holding that the ministerial exception did not apply because her duties were identical to that of a lay teacher, not necessarily someone of, you know, with a religious type of position. Remember the ministerial exception only applies to people who are ministering to a congregation, so it would not apply to an admin assistant or a custodian. It needs to be someone in some position of religious ministering. However the Supreme Court reversed the 6th Circuits holding, and said that the employee does fall under the ministerial exception. She underwent specific religious training and a commissioning process, the school held her out as a minister, and her duties reflected the role of conveying the church''s message. And I have to say here, at Equip For Equality, we had a case also regarding someone who was terminated due to mental health issues but they were in fact a pulpit minister. And we thought the ministerial exception actually protected the church''s right to terminate this minister even though we thought it was very unfortunate that they were choosing to do so. And I think with that that ends the first half of the program. I think we are going to try and open for questions and then Barry will look at Titles II and III. Thank you.
You want to take questions right now for your half sir? Is that correct?
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Ladies and Gentlemen, if you have a question or comment at this time, please press star, then the 1 key on your touch tone telephone.
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We do have one question on the phone line, did you want to go and take that one?
Yes go onto the next question
Its from Julia Sang
Thank you very much. This is enlightening as always. I have a question back on slide 12, talking about the regarded as, could you tell us the facts in the Dube case versus Texas Health and Human Services?
Let me try and see if I can find that slide. I think I have to go back to the case to find out - what facts particularly are you interested in?
Well I was just interested because it talked about how a defendant was relying upon a narrower definition and I wondered which piece of the pre-ADAAA definition the defendant was depending upon.
Well I think the courts looked at the regarded as part of the definition.
I was curious about the disability or how it was considered as regarded. I can probably look it up. I just wondered if you had it on the tip of your tongue?
Yea, I know and Im sorry, I don''t have it offhand but we do have the citation there.
Right, thank you.
I do not show any further questions at this time on the phone lines.
Ok well, this is Barry and I guess what we will do is we will move to Titles - Sorry, well move to Titles II and III and if people have questions at the end on any of the things we presented today you can feel free to ask us. And Alan if I could indulge and ask if you can move the slides as we go along, I would appreciate it. So the next topic we are going to move in to is Recent Litigation on the ADA and Education. And for those of you who are looking at the PowerPoints see all the different visuals that Alan has done regarding John Belushi from animal house with a big College sweatshirt. So he gets all the credit for the visuals that are here. So with education, weve got a few cases we are going to talk about. The first one is the Johnson case and this is a case that was decided earlier this year involving accommodating a student who had a couple of different disability issues. One was she had a learning disability and had asked for accommodations to participate in a private surgical technician program. So that would be under Title III and although they had promised to provide some accommodations to her, they had failed to provide those when push came to shove. And then during - while she was a student, she became unable to attend classes because she -- her lung condition that she had, made it difficult for her to walk up stairs and the classes that she was supposed to be attending were on the second floor and only accessible by stairs. And so ultimately, she wasn''t able to go and despite the program director who had recruited her, assured her that attendance would not be a problem, the teacher was unsympathetic and she was dismissed from the program for violating the attendance policy. And the teacher here was really unsympathetic, said things along the lines of, well she can just figure out how to get class herself. And he was upset that, you know, one student was getting what he called special treatment, that the tail was wagging the dog. So this was a teacher who really just did not believe that people with disabilities should be accommodated and as a result, she was unable to continue with her classes and filed suit under the ADA. And initially the plaintiff lost but when it got up to the 6th Circuit Court of Appeals, the Court reversed the ruling in favor of the Washington County Career Center and found that the plaintiff here had put forth sufficient evidence. That the school had failed to provide the accommodations and they also found that this attendance policy that they had sided for a basis for her dismissal, was actually something that they had not been enforcing consistently for students without disabilities. And so if you have a policy that you enforce only against or disproportionally against people with disabilities who are protected, that runs afoul of the ADA. And so by reversing summary judgment it meant that the case would continue on and the plaintiff would have a chance to present her case more fully. And I think this case, for those of you involved in the educational system, is a really good example of how a lone teacher''s actions enough - can be enough to raise an ADA violation. Here you have an administration that was trying to be supportive of the person with a disability but they enforced that were very differential to the teacher and as a result the entire educational entity was deemed to be in violation of Title III or at least the case was continued to see if they were in violation of Title III. Let''s move on to the next case, the Argenyi case v. Creighton University. This is a really interesting case, involved a student who had hearing disabilities. The student used a hearing aid, also had a cochlear implant and had requested a number of accommodations at the medical school, including CART, which for those of you who are not familiar with that, is Communication Access Real-time Transcriptions. So captioning, sort of as it goes along, and also interpreters from medical school and the student had received the same accommodations as an undergrad at a different university in Seattle. And the school did provide some accommodations here. They provided note-takers, front row seating, an electronic version of materials but they did not want to provide or did not agree to provide CART or the interpreters. They said that they did not see that that was necessary given the student''s residual hearing through the hearing aid and cochlear implant and they did request more information from the students doctor to clarify the need for the CART and the interpreters given the assisted listening devices that the student had. So what was interesting here is that instead of giving that information to the school, the student was sort of fed up and said, Look I am just going to give up and do it myself. I am going to use my own money to pay for CART and interpreters and I am going to sue. So Alan has been talking about the interactive process and I think one of the mistakes here, for the plaintiff here, who obviously is very frustrated but still did not give the information that had been requested. That may have ended up being the student''s downfall here. Interestingly, after suit was filed, the school did agree to provide the interpreters for the larger classes but not for the small ones. And they denied also the student the opportunity of providing his own interpreter for the smaller classes even though he was willing to pay for them. The school took the position that it would be better for the student to be prepared for his profession as a physician, if he was involved in clinics without interpreters and they believed that he could do it without interpreters. So what ended up happening was the court did find in favor of the university saying that the accommodations that were provided were sufficient. And during the pendent of this litigation, the plaintiff actually filed a motion to allow the use of his own interpreters and the court found that that was not something that they were going to force the university to allow happen. And they looked at the fact that the student had already passed classes without interpreters and so that sort of undercut the plaintiffs argument that the interpreters were needed. Now passing classes versus doing really well in classes, I think, could be a different theorem - well talk about that a little bit more. But basically, Id say the bottom line here was, the court found that the university had provided effective communication and that was required not necessarily the preferred accommodation. And what had happened here, the doctor only said that the CART and the interpreters would benefit or be appropriate for the plaintiff. The doctor did not say that they were imperative or were necessary. And so I think what the court suggests here is that you have to provide an accommodation only if the plaintiff shows it is necessary to provide access to the public accommodation. At least that''s the position that this particular court took. So I think the instruction here for plaintiffs is that you should make sure you engage in the interactive process, give the information that is requested, and also the doctors note should be very clear how imperative and necessary the requested accommodations are. Lets move to another case, and this is an interesting settlement that the Department Of Justice entered in to recently. This is a case that was brought actually by the Acquired Immune Deficiency Syndrome (AIDS) law project of Pennsylvania and then the Department of Justice Open Investigation, once the case was filed. This was a school, a high school called Milton Hershey School that refused to enroll a student simply because he was Human Immunodeficiency Virus (HIV) positive and some of the language in this case was really disheartening to here in 2012 when they said, you know, We don''t take kids like that, and that, We don''t have the means to provide support for students with HIV. Some real, you know, very reactionary type of statements that were made here. And this was a student who really had no manifestations of his HIV except that he had to take some meds during the day and that was it, so a complete overreaction, just denial. And so the suit, after it was filed, the student ultimately elected not to attend the school but the case resulted in the school paying $700,000 in damages under the law to - as part of the settlement. And this is a - you may have even read about this in the paper - there was a big - because of the Hershey involvement that was paid for by the Hershey company, the school was paying for the Hershey company and there was a big - protest in Times Square at the Hersheys store. So this got a lot of press involved. And basically what - after the suit was filed, that the school had claimed that the student would be a direct threat in the workplace and the plaintiff put on strong evidence that there was no significant risk for student with HIV in school to transmit HIV. And so after, I think, then or it was before the settlement came forward. And in addition to the monetary settlement, the school adopted a non-discrimination policy and training was required of the staff and administration. If you are interested in more information on this, weve got a link on this slide for the settlement. And DOJ also has the specific factsheet at ADA.gov/aids that has a fact sheet on discrimination again people with HIV and AIDS. But I think this case is a good example. We sometimes hear about direct threat in the Title I case involving employment but that it can also arise in the Title III case and Title II scenario as well within the education context. Lets move onto our next topic which is litigation involving professional licensing. And the first case we are going to talk about is the Enyart case. And those of you who participated in this audio conference last fall, might remember we actually talked about this case but there have been some developments in the case since then and because I think it is such an important case, we wanted to give you an update and bring people up to speed who were not on the call last year. So the Enyart case is a case that was brought against the National Conference of Bar Examiners and in this case you had a law school graduate who was legally blind and the State Bar Association had agreed to let him use a laptop with assistive technology, JAWS and zoom text. But the national bar examiners, which oversees these exams, had refused to allow him to have this text for the part of the examination that they oversee. And he had been granted some testing accommodations, including extra time, hourly breaks, a private room but not the laptop with the assistive technology. So ultimately this got up to the 9th Circle Court of Appeals and they affirmed the lower court decision that he should be allowed to use the technology and the laptop. And what they were saying was the previously granted accommodations didn''t make the exam accessible to the plaintiff and did not provide effective communication. So they - what they looked at was the fact that he had received other accommodations in the past, and that had been enough. And if you turn to the next slide, what the court did was they looked at a Title III regulation that is starting to get some play that I think is really important for people, no matter what your role is in the ADA to look at, because that regulation talks about that the examination must be administered as to the - to best ensure, that''s the main language there, to best ensure that the examination results accurately reflect the individuals aptitude or achievement level. And the court said if you apply that best ensure standard, the accommodations that were offered to the plaintiff, the ones beyond the laptop and the technology, would not make the exam accessible because, even with the other accommodations the plaintiff put forth evidence that she would still experience high fatigue, disorientation, and nausea. And again, the bar examiners tried to point to past success on previous standardized tests that this particular plaintiff had had, without the assistive technology and with the laptop. And the court said that past success really is not indicative of the current situation. And that''s really a contrast to the Argenyi case that we looked at before, which showed that the person - the student had passed the exams without CART and interpreters. So this shows a different approach to this whole issue. And I think what is also important in this case, is that the plaintiff''s disability - the eye and the vision disability had been progressive. And so they said that testing accommodations should advance as technology progresses. So, the fact that she got different accommodations in the past wouldn''t necessarily be determinative if your disability is progressing and manifestations of it are progressing as well as new advancements in technology. So if you turn to the next slide, what happened since the last time we talked is that the National Conference of Bar Examiners actually asked the Supreme Court to review this, saying that the 9th Circuit''s interpretation of this best ensure standard was incorrect and the Supreme Court declined to accept the case. And so the decision by the 9th Circuit stands and so after that decision had been - it went back down to the trial court and at that point the trial court found in favor of the plaintiff, found that the plaintiff was entitled to the requested accommodations and that all the experts that the plaintiff had put forth were not only admissible but were persuasive to the court. And so the accommodations had to be provided. We don''t have time to talk about it today but this case also has a very in-depth discussion of an undue burden analysis and that it was not an undue burden for the National Conference of Bar Examiners to provide this accommodation. So I would recommend looking at that if you are interested in that issue. I also wanted to point out that we do have an incorrect cite on this slide, in the second bullet point. We have number 925 for the page number where the case starts. It is actually supposed to be 995. We corrected that for the webinar but for those of you who downloaded the materials before, it is - you might have the wrong number. So it is 995 instead of 925. And then the last licensing case we want to talk to you about is a case involving the Law School Admissions Council. So these are people who are looking to go to law school as opposed to take the bar examination. And this was a case that was brought in California, on behalf of people with disabilities in California, who had been denied testing accommodations by the Law School Admissions Council for the law school admissions tests or the LSAT. And just last month in October, the Department of Justice was allowed to intervene in this case. And so this case goes from being just covering people in California to now being a nationwide case. A nationwide pattern or practice lawsuit, so the Department of Justice is saying what the Law School Admissions Council is doing is something they are doing on a nationwide basis and they have allegations that talk about the LSAC systemically failing to provide testing accommodations. And again they say that these accommodations are ones that best ensure that the test taker will be able to demonstrate their aptitude. So again, that best ensure standard that we talked about before comes in play. And they say there is just replete with the record of discriminatory policies that are denying accommodation requests even for people who had a strong history of accommodations, some people even having accommodations since elementary school that are being denied accommodations on the LSAT. The other component of this case is very interesting is that The LSAC is flagging test scores for people who are receiving testing accommodations and that results in certain test takers with disabilities being identified for the law schools that they have received accommodations and therefore that they do have disabilities. And so the Department of Justice is saying that this is an unlawful disclosure of a person''s disability through this flagging. So this case is just progressing, DOJ has just joined it. So this is one that we will want to watch to see what happens if it gets litigated or the settlement is reached. Lets move onto the next topic, which is Recent Litigation on the ADA and Public Services. And this - we have got one case where we just want to quickly let you be aware of. You may have seen this in the press as well because of the facts involved and this is something about medical Marijuana and the ADA. And in this case you had plaintiffs who had disabilities and their doctors have prescribed Marijuana for their pain, I believe they had cancer, and there were state laws involved in California that allowed the use of medicinal Marijuana but federal laws did not. And so two cities where the plaintiffs resided looked to shut down the collectives that were distributing the medical marijuana. And so in response, the plaintiffs filed suit under Title II of the ADA. And as people might remember, the ADA does exclude from the definition of disability, individuals who are engaged in the illegal use of drugs. So the question here is: Does the plaintiffs use of medical marijuana constitute the illegal use of drugs under the ADA? And this is a really complicated case. It would probably take a half hour to go through all the distinctions that are in here but what I just wanted point out is that there is a provision in the ADA that talks about there is a -- that the illegal use of drugs is not covered or does not apply if the plaintiff can show that the drug is taken under the supervision by a licensed health care professional or other uses authorized by the Controlled Substances Act or other provisions of federal law. And the big dispute here, the plaintiff was saying, Well, we have got the supervision of the licensed health care professional and that should be enough. And what the defendant as well as the court said is, No, it is not just the licensed health care professional. You have to also show that the use is authorized by the Federal Controlled Substances Act or other parts, other provisions of federal law. And that the plaintiffs didn''t do that here. And so ultimately, they said that the use, because the medical Marijuana was federally prohibited, it did not come within the exemption of drug use authorized by other provisions of Federal Law. And the fact that, just because the person had -- was supervised by a physician was not enough to get coverage by the ADA. So, you know, I know this is probably going to be an issue that continues to percolate a little bit. I think after the last election, another state, I think it was Colorado, did pass a law allowing the use of medical Marijuana. And so, the - sort of the interplay between the ADA as a federal law and the state laws, it is going to be something that is going to be interesting to watch as things progress. Were going to next move to the issue of community integration and moving to the next slide, people probably are familiar with the Olmstead decision. That people with disabilities are entitled to receive services in the most integrated setting. And slide 49 has the different factors that are involved on what it takes to show that you are entitled to community integration, that treatment officials find that community is appropriate, the person doesnt oppose placement in the community, and that the placement can be reasonably accommodated taking into account the State resources and needs of other people with disabilities. And that third bullet point is really the big part of the litigation. And the states can meet their ADA obligations if they have a comprehensive, effectively working plan for placing people with disabilities in less restrictive settings and a waiting list that moves at a reasonable pace. So the - I think the biggest case that came down in community integration is on the next slide, is sort of taking the Olmstead decisions to a new level, and that''s the Lane v. Kitzhaber case. Hopefully Im pronouncing that last - the defendants name correctly. And this is a suit that was filed on behalf of eight people who had intellectual disabilities and they were working in segregated workshops even though they were able and wanted to work in an integrated employment setting, looking for supported employment. And they filed suit under the ADA claiming that the integration mandate applies to not just people who are in institutions or who are at risk of moving in to institutions that the state does not provide community services, but also claiming that the integration mandate applies to whether employment related services are in an integrated setting or a segregated setting like a segregated workshop. Or a sheltered workshop, thats another term that is used. And the court found in favor of the plaintiff that they did state a valid claim under Title II. And after that decision was reached, the court actually entered another order certifying the case as a class action. So it is no longer on behalf of these eight individuals but on behalf of all people in sheltered workshops who are seeking to be in more integrated settings. So this is an example of Olmstead being extended beyond people in institutions or who are at risk of institutionalization because of a lack of community services, which is - those are the cases I think most of us are familiar with. But this is one that is taking it to a different perspective on what community integration really means. So I think we should watch this case carefully. The plaintiff hasn''t proven their case yet but getting -- finding that Title II applies and finding that they get a class certified I think are two huge hurdles that the plaintiffs have gotten over and it will be interesting to see how the litigation progresses from there. We also wanted to let you know about a case in case you hadn''t heard about it that the Department of Justice brought against the state of Virginia regarding people who are with intellectual disabilities living in state operated institutions, about 2900 people. And this is a case where the state ultimately reached an agreement with the Department of Justice but there was a group representing parents of institutional residents who did oppose the agreement. So there was - the agreement was not immediately moved forward because of the disagreement by the institutional residents parents. But later in the summer, an agreement was approved by the court despite the objections that were raised by the institutional parents and on the next slide you will see that provisions of the agreement, which will allow for 4200 new home and community based waivers for adults and children on their waiting lists for community services. So this involves not just adults but kids as well. They are also going to be creating an Employment First policy to provide meaningful work opportunities for people with intellectual disabilities. So this corresponds with the Lane case we just talked about for people in segregated employment. Also the case provides for housing assistance to provide opportunities for people to live independently and also have some comprehensive risk management systems and community crisis systems to help people from being unnecessarily institutionalized who are in the community. Another consent decree that was entered recently, was here in Illinois, is the Colbert case. That was entered since we talked last fall. The Colbert case was brought by a group of organizations, The ACLU of Illinois, Access Living, Equip for Equality, my organization, as well as a private law firm, SNR Denton on a pro bono basis. And this was a case that was brought against Illinois state officials on behalf of about 16,000 people with physical disabilities or people with mental illness who are living in traditional nursing homes in Cook County Illinois, which is where Chicago is located. And after some litigation and some negotiations, an agreement was reached between the plaintiff class and the state. And last December, a comprehensive Consent Decree was entered by the judge and that will allow nursing home residents who - the opportunity to move into the community and receive the supports that they need to be successful. And the next slide just gives the terms of the consent decree and I think I am just going to continue on past this slide so we have more time to get to the other cases. But it is laid out pretty clearly what the provisions of that agreement are. We also have a monitor that has been appointed and just this last week an implementation printed to have them installed at the court. And then the next slide we have just a listing of some other settlements that have happened in community integration litigation, in California, Florida, North Carolina and Maine. And if you are interested in more information on these particular cases, one option would be to contact the Protection advocacy agency and development in that state. And if you do not know the Protection Advocacy Agency in your state, that can be found on our national associations website, which is located at: NDRN -The National Disability Rights Network - NDRN.org and then there will be a U.S. map that you can click on to find the information for your P&A state. For these cases as well as other cases we obviously can''t cover all of these or list them all and there are other Olmstead cases that are either been resolved or are - that are currently pending in many states across the country. Lets move onto the next topic, the litigation in the criminal justice realm. And weve got a couple of cases we wanted to point out. One is another settlement and this was done by the Protection Advocacy Agency in Massachusetts as well as the Center for Public Representation in private law firm. And this was brought against the Massachusetts Department of Corrections, basically alleging that people - prisoners with mental illness being in solitary confinement, violated the Americans with Disabilities Act, Section 504 of the Rehab Act as well as the 8th and 14th Amendments of the Constitution and again an agreement was reached in that case. You got a link for the agreement but class basically going to be expanding mental health services for prisoners and also reducing or removing segregation for them and also have secure treatment units as alternatives to segregation. So, major systemic change in Massachusetts involved with this litigation. We also wanted to tell you about Jaros case which is one that was decide here in Illinois and this is a case involving an individual as opposed to the broader systemic litigation as in the previous slide. And this is a prisoner who used a cane, he had advanced osteoarthritis as well as vascular necrosis in his hip. And he had filed suit under the ADA, the Rehab Act and the 8th amendment for cruel and unusual punishment because he was unable to access showers and meals the same as other prisoner. There were a lack of grab bars and access to toilets as well. It is not listed here but that was another component. And this is a case where the prisoner -- prison officials didn''t do themselves any favors. They said you need to deal with it and they said that the IDOC had not designated this particular prison as the handicap prison and they didn''t need to make the accommodations requested which is obvious incorrect and then he was also denied access to the prisoner''s work release program because of his use of the cane. And again the prison officials didn''t do themselves any favors because they stated no one with a cane can go on work release. Even though you had a doctor in this particular case who said he was qualified to participate in work release they had a no assistive device policy. If you used a wheelchair or cane you couldn''t be in a work release program which is a clear discriminatory and the court found that the plaintiff should be able to proceed with his claim under the rehab act. The Department of Corrections filed a motion to dismiss and the IDOC had failed to accommodate his disability and claim for denial for participation in the work release program. So on both he was able to proceed with both of his claims. The court did say there wasn''t an 8th Amendment violation because the Department of Corrections had not been deliberately indifferent. They had provided him with a cane and prescribed some pain meds and given him a lower bunk preference and they didn''t deprive him of toilet or shower or meals but they had made it more difficult. So it didnt rise to the level of a constitutional violation but they did say that those -- he could proceed with his argument under the Rehab Act. Well, now shift over to some transportation litigation and a couple of cases in the New York area, one was a case involving modification of a train station and remember under the ADA when you make modifications to transit entities facilities the ADA can kick in and the district court here had said when they did modify this train station it did trigger the accessibility requirements and they quoted the transit authority to make it station accessible but the Third Circuit found that the modifications may not be required because the transit authority had shown that it will be technically infeasible potentially to make the changes despite the modifications they had made. Their arguments that it would require them to acquire sub-terrain property rights and technical infeasibilities of having to move a load bearing part of the station that they made it accessible and also whether it would even violate the fire safety code if that they made it accessible. So, the court said there was enough potential issues to the infeasibility of it and they have sent it back to the trial court to look at it in more detail. We also have the case on accessible taxis and this is the Noel case. And this is a case that was actually not brought against the taxis themselves but by a commission that licensed the taxis. And the gist of this case is that the taxi and limousine commission would not be covered under Title II B of the ADA which covers particular transit entities because the commission was not a transit provider. And so they tried to be covered under the Title II A for public services and the court said that''s not -- it didn''t violate that aspect either because Title II doesn''t require public entities to release the compliance of the private entities licenses. They can only require that the licensee not be discriminatory and it practices but not in how it actually implements the license with respect to people with disabilities. They said it was too attenuated to make the limousine commission liable here. I think that there is -- that people need to be aware that you could go after the title -- the taxi as a private entity and the taxi companies as a private entity under Title III although there are exceptions under the ADA with respect to vans. Although if they purchase vans, those vans have to be accessible for people are disabilities. And then we also wanted to make sure you were aware of some recent DOJ settlements involving accessible charter buses and this highlights four recent settlements but DOJ has reached agreements with 22 different private bus companies to ensure accessibility for people using private charter buses under Title III. So theres some information on this and if you want more information it is on this slide if you want to see that. We also wanted to alert you to given the recent election that there was an important ADA case on voting. And this is the United Spinal Association versus Board of Elections in the city of New York. And a couple of different disability groups filed suit under ADA in Section 504 claiming that the Board of Elections didn''t provide meaningful access to people with disabilities and they had designated a lot of accessibility problems: missing ramps, broken ramps, inappropriate signage, inappropriate placement of voting equipment, heavy doors, broken doors, and all sorts of things and what the -- and nutshell what the defendant tried to say that they actually got to vote so they didn''t deprive them of voting. They don''t have a claim of voting discrimination under the ADA and the court said no, that''s not the standard of the ADA. The standard is meaningful access and the defendant did not meet that standard. They did not provide equal access because of all these barriers that were in place in polling places and they did not provide alternatives that would have provided access like other types of polling places that were accessible. So therefore they found a violation of the ADA in that case. We also wanted to make sure you are aware of recent litigation on public accommodation access. The main case that has gotten a lot of press recently is the case against Netflix for failing to provide equal access with its watch instantly access. And basically the argument in this case was that Netflix was saying that it wasn''t covered by Title III of the ADA because they were not a place of public accommodation and they said if you look at ADA and they give examples of within the different categories of public accommodation there is nothing about web-based service. Well, the reason is the ADA was passed in 1990 and we didn''t know what web-base services were in 1990s and that came later in 90s. The court said Congress didn''t intend to limit the ADA to specific examples that were listed in the categories of public accommodation. The other issues that have been raise was saying that the ADA, to rule in favor of the plaintiff here would allow the ADA to sort trump the more recently enacted 21st Century Communications and Video Accessibility Act which provides for more specific standards regarding captioning and the court found they were not inconsistent and then soon after this case was decided this past summer, the parties reached agreement which now Netflix will agree to provide captioning on 100 percent of streaming videos within two years. And we have given you a link to the settlement if you want more information on that. We also have couple of cases listed here on the next slide regarding access to amusement parks and they go different ways. The Baughman case said that a person who wanted to use a segway at Disneyland in California, that Disneyland should have accommodated them and modified their policy preventing the use of two wheeled vehicles in the park. That was an individual case, the Ault was out of Disney World in Florida and in that case suit had been brought about segway and the people ultimately settled in said they could exclude segways as long as they include alternate vehicles called ESVs which are four wheel electric standup vehicles and said that should be sufficient and when they reached that agreement a lot of people didn''t think that was a good agreement. The Department of Justice and I think 23 different Attorney Generals filed objections saying that the plaintiffs agreement that they had reached here did not serve the broader disability community appropriately and limiting segways should not have been agreed to and the other circuit uphold the agreement. It said that was a reasonable agreement and even though there is DOJ guidance on segways they felt that Disney would show that they did have legitimate safety concerns which is an exception under the new regulations that DOJ has put out on segways. So that settlement was allowed to proceed that prevents use of segways at Disney properties. We also have listing of some agreements that were reached with respect to access to movie theaters on the next slide and we have the website and link if you are interested. All those are involving access to movie theaters for people who are deaf, blind or hard-of-hearing. And one is in Arizona and one is in Texas and one is here in Illinois that we had worked on with our Illinois Attorney General. Some very far reaching agreements that are being reached with respect to access to movie theaters. And then also we got a couple of recent rulings as opposed to agreements involving access to businesses, one involves two Hollister stores which are funded by Abercrombie and Fitch, with respect to physical access and these particular stores are not accessible and main entrance was not accessible and there were other parts of the store, other entrances that were. And so the dispute was that the main entrance had to be accessible. The court found that it was even thought the store had compliance with some of the precisely design standards in the ADA that did not really encompass the broader policy views of the ADA and making the main entrance inaccessible. So they lost on that case. And the Moeller v. Taco Bell is a case involving 160 Taco Bell restaurants in California that had a number of design inaccessibility problems and the court found in favor of the plaintiffs there and ruling that Taco Bell would have to make some changes to how they are -- their design of their stores in California. And then the last thing we wanted to share with you were just a few new suits regarding standing to sue. You might remember if you have been on these calls before that sometimes people have a hard time proving that they can be a plaintiff in case involving access to private businesses under Title III or to public entities under Title II because they can''t show that they have standing and usually the case revolves around whether they are likely to show future harm that they are going to revisit the inaccessible place. Sometimes you have people who are bringing claims against hotels when they are traveling and they can''t show they are going to come back or against the hospital they are going to and can''t prove they are going to get sick again and so sometimes difficult for plaintiffs to bring case under Title III because of this standing requirement. If you looked at the next slide we have some cases that show where plaintiffs were successful, the Walker case is somebody who has sued a shopping center for lack of accessibility and they claim that he didn''t have legal standing because he -- there was a shopping center that was closer to his house and he couldn''t prove they would go back to the shopping center. The court said that was not appropriate, that it wasnt that far away and the he had shopped at this place before and it wasnt like some place was across the country where it wasnt unlikely he would be harmed in the future if they remained inaccessible. So he won on that. They also raised in that case that you had to exhaust administrative remedies and file with the local entity before filing in court and the court rejected that you don''t have to exhaustive administrative remedies under Title III. And next case is another standing case involving wheelchair users who are looking to access the courts. There is a typo on this slide. It is not the Northern District of Illinois. It is the Northern District of Indiana for this case. Sorry about that. But they were able to prove that they had standing to pursue their claims of inaccessible courts because they did have a case of that pending in the court unrelated to their accessibility claims. They were actually three plaintiffs and two of them had a pending case and one that didn''t. The court said that the two that had the pending case could move forward with their case. And last slide is some upcoming topics that we think we will look for in the future. Alan talked about reassignment of employment as well as the pre-employment testing and often times that will involve personality testing. We also have some EEOC guidance on arrest and conviction records. There has also been some potential issue regarding medical disclosures on professional license applications that we talked about. We also had the new Title III regulations that have come out and how the courts are going to be interpreting and those. We are starting to see some of those with the segway case that we referenced as well as some issues regarding people from post secondary institutions expelling students who seek mental health treatment or who maybe are committing suicide or deemed not appropriate to stay in school. We talked about movie theatres but we are also seeing potential cases involving audio description in closed captioning for people attending live theaters. So with that we have got some resources on the next slide, ADA national network as well as our P&A National Network and we the web links for Department of Justice and the Job Accommodation Network and the EEOC and last slide before we open up for questions just as Alan said this if you are Illinois attorney, you are eligible for 1.5 hours of continuing legal education credit. Need to send me an e-mail at Barryt@equipforequality.org.
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This is Kevin the operator. We do have one person on the phone line. Our question comes from caller.
I was wondering my name is XXX, I am with disability solutions. And I was just wondering in regards to the Taco Bell case, what was some of the main pointers in that? Was it more of accessible bathrooms? Is that more what lawsuit contains?
It was a lot of different things. Alan if you could find that slide.
I know there was accessible bathroom was part of it. But also issues regarding the actual store accessibility, shoot. So store accessibility, there was parking accessibility, there was also an issue regarding the cues themselves as far as how people lined up in Taco Bells...that was problematic and I apologize. I am trying to find that slide in my notes. Let''s see, Inaccessible parking and signage, there was the door forces, the doors were too heavy, cue lines, there was counter height issues as far as getting drink lids, which was the access to self-service items and then the accessibility of the rest room. It was from the entering and parking at the store and then everything within the store including the rest rooms.
Okay. Thank you. Okay. You can put your questions or comments in the chat area. I do see a comment and I believe they are asking about the captioning or transcript for today''s session and just want to remind everyone that today''s session is being recorded and that includes the captioning, that is in the session. That will all be provided and archived on our site after the session. OPERATOR : do we have any other questions on the line?
No, I am not showing any other questions.
One thing I was going to mention I think Alan alluded to this in the beginning we are going to have a more in-depth session and I know it feels like we are covering a lot of information in short period of time. We are going to have the legal webinars series in January we are going to be having a session called the top 12 ADA cases of 2012. We are going to be looking more in-depth at 12 cases that we think are the most important that have been decided, subjective, of course, and some of them may be some of the cases that we talked about today but going into the legal arguments and analysis. If you are interested go to the Great Lakes site and sign up. We are also going to be doing a session on the ADA amendments act and cases decided since then as well as litigation arising in the context of the hospitality industry, so accessibility to restaurants and accessibility to hotels and that sort of thing.
Okay. I do see the comments in the chat area regarding the Lane v. Kitzhaber case and the question is what''s the plaintiff''s goal that the money currently paying for the segregated workshop be diverted to services for supported employment and this is on slide 50.
Yes, and I would need to look at the complaint for sure but my understanding is that what they are looking for is that the state to provide meaningful choice for people. Right now, the way the system is funded the majority, significant majority of the funding is provided for people in the sheltered workshops and so they are looking for people to have more meaningful choice which would mean funding that would allow people to chose supportive employment and other types of integrated employment as opposed to the -- for many people the only choice of sheltered workshops.
Okay. Operator do we have any questions on the phone line?
No, there are no questions.
Okay. We are actually at the bottom of the hour. Do you want to do any closing comments Alan and Barry before we wrap up today''s session?
I don''t think I have anything. Just thanks to everyone for participating.
Yeah, and I think one thing to remember is that we sort of doing a snapshot of some of the litigation that has come out this last year and we can''t get in to all the cases some it is important to remember that sometimes cases because of where they are filed, jurisdiction they may have different result in other jurisdictions or the facts may turn. And so what we are trying to do is give a sense of what the courts are saying but these cases are not definitive of all the different court cases on these issues because these are so many decisions that have been coming down. Hopefully we are given you a snapshot but they are not an indication of all the cases that are out there.
Okay. And just to remind everyone that our next session for the ADA Audio conference is December 18th. This is on ADA and GINA. Its understanding the rules when employers request medical or genetic information. You can register for that at ADA-Audio.org. You can call your regional ADA center at 800-949-4232. Today''s session was recorded and it will be archived on our website in seven to ten business days from today and that will include a copy of the transcript and the presentation. Alright, with that I would like to thank Barry and Alan for today''s presentation and we will conclude today''s session.
Ladies and gentlemen this concludes today''s presentation you may disconnect and have a wonderful day.