Gone Fishin'

I'm heading away for a few weeks, in part for this conference, and in part for a vacation.  Don't expect any posts from me until I return, though I may tweet some.

DOJ Reaches Hearing Access Settlement with New Haven

See this article in the New Haven Register.  It begins:

The U.S. Department of Justice and the city have reached a settlement agreement that will ensure the city provides adequate services to individuals who are deaf or have difficulty hearing, according to a Justice Department statement. 

The agreement comes after two complaints alleged that the Livable City Initiative and New Haven Police Department failed to provide interpreters for individuals who are deaf or have difficulty hearing, during investigations, arrests or other actions, from 2008 to 2011, the release said. The Livable City Initiative is an agency focused on neighborhood enhancement and improvement through the enforcement of codes and space requirements. 

The Americans with Disabilities Act requires local governments and police departments to provide adequate services for persons with disabilities. The ADA also requires adequate training for staff.

HUD Issues Olmstead Guidance

Yesterday, the Department of Housing and Urban Development issued a guidance document on the implementation of Olmstead in HUD-funded programs.  Integrated housing is a crucial piece of Olmstead implementation, so it's exceptionally important that HUD issued this guidance.  From the introduction:

Individuals with disabilities have historically faced discrimination that limited their opportunity to live independently in the community and required them to live in institutions and other segregated settings. In 1999, the United States Supreme Court issued the landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999), affirming that the unjustified segregation of individuals with disabilities is a form of discrimination prohibited by Title II of the Americans with Disabilities Act (ADA). Following the Olmstead decision, there have been increased efforts across the country to assist individuals who are institutionalized or housed in other segregated settings to move to integrated, community-based settings. In addition, states are “rebalancing” health care delivery systems by shifting away from an overreliance on providing long-term services and supports to individuals with disabilities in institutions, hospitals, nursing homes, adult care facilities, and other restrictive, segregated settings and moving towards a greater reliance on home- and community-based services. For many states, these efforts to comply with Olmstead and rebalance the way long-term services and supports are provided by moving individuals out of institutions and into the community are confounded by a lack of integrated housing options for individuals with disabilities. As a result, there is a great need for affordable, integrated housing opportunities where individuals with disabilities are able to live and interact with individuals without disabilities, while receiving the health care and long-term services and supports they need.

Individuals with disabilities, like individuals without disabilities, should have choice and self- determination in housing and in the health care and related support services they receive. For this reason, HUD is committed to offering individuals with disabilities housing options that enable them to make meaningful choices about housing, health care, and long-term services and supports so they can participate fully in community life. As more states facilitate the transition of individuals with disabilities from institutional or other segregated settings into their communities, the need for meaningful choice among housing options is critical. For communities that have historically relied heavily on institutional settings and housing built exclusively or primarily for individuals with disabilities, the need for additional integrated housing options scattered throughout the community becomes more acute.

HUD programs serve as an important resource for affordable housing opportunities for individuals with disabilities, including individuals who are transitioning out of, or at serious risk of entering, institutions. HUD funds the operation, management, development, preservation, and rehabilitation of affordable housing. HUD’s portfolio includes tenant-based housing vouchers, apartment buildings that serve a wide variety of individuals and families, and numerous other programs that provide permanent and transitional housing with or without supportive services to individuals with and without disabilities.

New Wellness Regulations

See this story in the New York Times, which begins:

The Obama administration issued a final rule on Wednesday that gives employers greater leeway to use employee wellness programs, with financial rewards and penalties for workers worth up to 50 percent of the premium as an incentive to exercise, quit smoking, lose weight, eat more healthful food and lower cholesterol and blood pressure. 

Tens of millions of workers could be affected. More than 90 percent of employers with 200 or more employees have programs to promote healthful behavior or prevent disease, the Labor Department says. 

The rule allows employers to reward or penalize employees who meet specific standards related to their health. Such “outcome-based wellness programs” could, for example, reward employees who do not use tobacco or who achieve a specific cholesterol level, weight or body mass index. 

However, an employer-sponsored health plan must provide “a reasonable alternative standard” so that employees can qualify for rewards if they fail to meet the initial standard.

I'll have some analysis of the rule in the next week or so.

California Supreme Court Considers Insulin-in-Schools Case

See this coverage from the LA Times, which begins:

Several members of the California Supreme Court appeared wary Wednesday of requiring public schools to provide licensed nurses to administer insulin injections and other medications to schoolchildren.

The powerful California Nurses Assn. has argued that state law requires licensed nurses to provide insulin injections and other medicines, and two lower courts have agreed. The American Diabetes Assn. appealed. During a hearing, some justices on the state high court appeared skeptical of the nurses' arguments. 

Justice Ming W. Chin, noting that few schools have full-time nurses, questioned why districts should have to call in a licensed practitioner to administer a shot that a child's parents and physician have agreed could be given by an unlicensed but trained employee.

For full disclosure, I should note that when I was at DOJ I signed a brief in this case arguing that the state Nurse Practices Act, to the extent that it is construed to prevent unlicensed but trained school employees from administering insulin injections to students with diabetes, is preempted by the IDEA, Section 504, and the ADA.

Interesting Article on the Construction of Disability in China

New on SSRN: Yee-Fui Ng, Disability Rights v. Quality Birth Rhetoric: The Construction of Disability in China, (2012) LAWASIA Journal 1.  The abstract doesn't really tell you much, but here's an excerpt from the paper:

This article explores the tension between China’s strong engagement in the area of disability, and the widespread acceptance in China of the importance of ‘quality birth’ (or suzhi) and the resultant perceived need to reduce the number of disabled babies being born.5 This article aims to explore this tension by critically analysing the laws and government rhetoric on disability rights, against the ‘quality birth’ laws and rhetoric, which include laws sanctioning sterilisation of disabled couples. At a broader level, the article examines the strategic way in which the Chinese government uses the language of disability in the two separate strands of disability discourse. In doing this, the article also sheds light on how the disabled are defined, administered, policed and governed in postsocialist China.

I argue that although at face value the Chinese government’s emphasis on disability rights and the simultaneous focus on ‘quality births’ seem to be diametrically opposed, these separate rhetorical strands work harmoniously with each other due to the pervasive influence of suzhi or ‘quality’ on the government and the Chinese population. My contention is that the combined effect of government policy in the area of disability is that there will be fewer people born with disabilities in Chinese society, as pre-birth disabilities are to be prevented through abortion to increase the ‘quality’ of the population, while those disabled post-birth are rehabilitated under the Chinese government’s disability rights efforts to contribute to the socialist regime. I also argue that as the concept of ‘quality’ strongly permeates contemporary Chinese society, where the Chinese public self-regulate, their behaviour and goals are aligned with the government to reduce perceived ‘low quality’ births; thus disabled foetuses are more likely to be aborted.

N.D. Ohio Grants Summary Judgment to Plaintiff in Fair Housing Act Failure-to-Accommodate Case

Last week, Senior District Judge James G. Carr of the United States District Court for the Northern District of Ohio issued an opinion in Vance v. City of Maumee, 2013 WL 2102845 (N.D. Ohio, May 15, 2013).  The principal plaintiff, a woman with significant and progressive disabilities that made it increasingly hard for her to climb stairs, had asked the city, 15 years after she bought her house, to pave the alley behind her house.  Because the alley was on the same level as her house, while the street in front of the house was down a substantial hill, paving the alley would enable her to get into her house without climbing the 18 stairs in front -- a climb she could no longer manage without crawling slowly on her hands and knees.  The plaintiff offered to arrange and pay for the repaving herself and to put up a bond, but the city council refused to consider her petition.  She then began construction on a parking pad behind her house, and incidentally put some gravel on the alley, but city officials threatened to fine her and placed a "road closed" sign in front of the alley.

On cross motions for summary judgment, the district court concluded that the city's actions constituted a failure to accommodate that violated the Fair Housing Act and the ADA.  Notably, the court rejected the city's argument that "the FHA protects only the right to live in a residential neighborhood, not the right to live in a specific dwelling."  To the contrary, the court concluded, "[t]he FHA protects the right of disabled individuals 'to enjoy the housing of their choice.' This encompasses a right to live in residential neighborhoods as well a right to live in the residence of one's choice."  The court also rejected the city's argument that the accommodation was not necessary to enable the plaintiff to live in her home:

The City has earlier suggested to Plaintiff that she install a chair lift on the stairs leading from her garage to the first floor of her home. Expense aside, Plaintiff told the City that a lift would not ameliorate the effects of her disability. This is so, according to Plaintiff, because the stairs leading from the garage to her first floor are “split”—the top section proceeds in a different direction than the bottom section. Plaintiff thus would either have to purchase two separate lifts or be stuck between the two sets of stairs leading from her garage to her home. 

The City now contends that Plaintiff should solve her own problem by installing a ramp or a driveway extension. According to the City's report, the ramp would consist of four smaller ramps, each 26 feet long, and multiple switchbacks. The report does not opine on the cost of installing either the ramp or the driveway extension. It was incumbent on the City to do so. 

Unlike in [an earlier case], the “alternatives” the City suggests to Plaintiff are both costly, or at least appear so, and unduly burdensome. Plaintiff, moreover, is will, as the ordinance allows, to bear the necessary costs for placing gravel on the alley. Thus the City would incur no construction burden or cost from allowing Plaintiff to make any necessary alley alterations. Moreover, accessing her home from her backyard would substantially alleviate the pain, inconvenience, and embarrassment Plaintiff currently endures.

Moreover, by allowing plaintiff to enter and leaver her home more easily would more completely make coming and going as relatively easy for her as for most homeowners. An accommodation which fails to reach this aspect of a disabled person's life also fails, in my view, to be as accommodating as, whenever reasonably possible, it should be.

This last paragraph, it seems to me, well encapsulates the antidiscrimination and integration purposes of the FHA.

Good Reuters Piece on Recent EEOC GINA Activity

See this article, which begins:

The U.S. Equal Employment Opportunity Commission has signaled it will actively sue employers it suspects of misusing genetic information to discriminate in the workplace, filing its first class action using a 5-year-old law known as GINA just days after winning its first case. 

The EEOC said last week that it had filed a class action against Founders Pavilion Inc, a rehabilitation and nursing facility in Corning, New York, using the Genetic Information Nondiscrimination Act (GINA). 

Earlier this month, the commission announced it had obtained a $50,000 settlement for a worker from fabric distributor Fabricut in Tulsa, Oklahoma, in the first GINA case the commission brought after the law was passed in 2008.

New York City to Reduce Use of Solitary Confinement for Inmates with Mental Illness

See this story from the New York Times.  It begins:

New York City will soon change the way mentally ill inmates are disciplined after breaking rules while in jail, creating alternatives to the more traditional approach of solitary confinement used for most inmates. 

Instead, the city Correction Department will transfer severely mentally ill inmates to an internal clinic where psychiatrists will administer treatment and medicine, and the less seriously mentally ill will go to counseling programs designed to help them change their future behavior. Inmates will not be released back into the regular jail setting until they complete treatment. 

The new approach, to begin in July, is intended to address what both city officials and prisoners’ rights advocates say is a growing problem: not only are there a disproportionate number of mentally ill inmates in the city’s jails, but they are also more likely to break rules multiple times and stay in jail longer than others.

Eleventh Circuit Rules on Medical Examinations for Current Employees

Yesterday, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Owusu-Ansah v. Coca-Cola Company.  At the time at issue in the case, Owusu-Ansah worked for Coca-Cola as a quality assurance person for customer service representatives in the company's call center ("your call is being monitored for quality assurance").  In this position, he worked mostly from home.  In December 2007, however, he went to the office for a routine management meeting with his supervisor. At the meeting, according to the record as reviewed by the court, Owusu-Ansah complained about a number of instances of national origin discrimination and harassment he said he had experienced at the hands of his supervisors and coworkers.  His supervisor "observed that Mr. Owusu-Ansah became agitated during the meeting, banged his hand on the table where they sat, and said that someone was 'going to pay for this.'"  

Concerned about that behavior (Owusu-Ansah's, not the behavior of those who allegedly discriminated against Owusu-Ansah), company management asked him to be interviewed by a consulting psychologist.  After the interview, the company placed Owusu-Ansah on paid leave to enable him to be further evaluated as a potential safety threat.  The company directed Owusu-Ansah to undergo a psychiatric evaluation, which included taking the Minnesota Multiphasic Personality Inventory (MMPI).  He first refused to take the MMPI, but eventually took the test in March 2008.  After reviewing the results of the test, Coca-Cola allowed Owusu-Ansah to return to work in April.

Owusu-Ansah sued under the ADA, which prohibits employers from requiring current workers to undergo medical examinations or inquiries "unless such examination or inquiry is shown to be job-related and consistent with business necessity."  42 U.S.C. 12112(d)(4)(A).  The district court granted summary judgment to the company, and the Eleventh Circuit yesterday affirmed.

The court of appeals held that the psychological evaluation, including the requirement that Owusu-Ansah take the MMPI, was "job-related and consistent with business necessity" (I've omitted citations and footnotes):

The evaluation was "job-related" because an "employee's ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position." [Quoting an earlier Eleventh Circuit case] Ms. Cabral reported that Mr. Owusu-Ansah – in the course of complaining about discrimination and harassment – banged his fist on the table and said in a raised voice that someone was "going to pay for this." When he was deposed, Mr. Owusu-Ansah denied having behaved that way during his meeting with Ms. Cabral, and he now points out that there were no prior incidents showing that he had a propensity for workplace violence. That, however, is not dispositive. Although Coca-Cola apparently never asked Mr. Owusu-Ansah for his version of what happened at the meeting, it did not rely solely on Ms. Cabral's account in ordering the evaluation. Coca-Cola knew that Mr. Owusu-Ansah had refused to speak to Ms. Welsh and Dr. Riddell about his workplace problems. In addition, Dr. McElhaney – the consulting psychologist – expressed "significant concerns" to Coca-Cola about Mr. Owusu-Ansah's emotional and psychological stability, and recommended a psychiatric/psychological fitness-for-duty evaluation.

On this record, we conclude that Coca-Cola had a reasonable, objective concern about Mr. Owusu-Ansah's mental state, which affected job performance and potentially threatened the safety of its other employees. Though Mr. Owusu- Ansah worked from home, he had access to and was required to attend meetings at the Dunwoody call center.

For basically the same reasons, the evaluation was also "consistent with business necessity." Though it may not be one of the traditional canons of statutory construction, common sense is not irrelevant in construing statutes,4 and in our view an employer can lawfully require a psychiatric/psychological fitness- for-duty evaluation under § 12112(d)(4)(A) if it has information suggesting that an employee is unstable and may pose a danger to others.

This case doesn't look to have been the best litigated by plaintiffs' counsel (who apparently failed to object to the factual aspects of the magistrate judge's recommended ruling in the district court), but the opinion is nonetheless troubling in the low bar it sets for a psychological evaluation.  How many folks have raised their voices and banged on the table when complaining about workplace mistreatment without being a safety risk?  I would bet it's a lot.

DOJ Obtains $60K Settlement Against Golden Corral for Denying Service to Family of Kid with Skin Condition

See this article, which begins:

A Westland restaurant has agreed to pay a mother and herchildren $50,000 for asking them to leave because one of the daughters had a blistering skin disorder that was making customers uncomfortable. 

According to the settlement announced Wednesday by U.S. Attorney Barbara McQuade, the Golden Corral buffet-style restaurant also will pay $10,000 in civil penalties to the U.S. The incident happened in 2011, triggering a Justice Department lawsuit. 

According to the suit, a manager at the Golden Corral restaurant demanded that Danielle Duford and her four daughters leave the restaurant during a dinner outing because of the appearance of one of the children’s skin. The child, the suit said, has a genetic skin disorder known as epidermolysis bullosa, which causes blisters to form on the skin in response to minor injuries and temperature changes.

Op-Ed on Disability Discrimination in Milwaukee School Voucher Program

See this piece.  Excerpts:

What do these children have in common? They all have disabilities, they all tried to participate in the Milwaukee Parental Choice Program and they all were denied admission, not served or pushed back into public schools by private voucher schools. These children have become part of a dual education system that segregates the overwhelming majority of children with disabilities in public schools, while providing them with fewer and fewer resources. 

Pro-voucher forces claim that private schools serve many children with disabilities, but they have no serious data to prove it. The schools told the state Department of Public Instruction that only 1.6% of their children were students with disabilities for testing purposes. A study they use to argue that 14% of voucher students have disabilities only says that 14.6% of children who attended both Milwaukee Public Schools and voucher schools were in special education in MPS. 

* * * 

Pro-voucher forces argue that the solution is to create a separate special needs voucher program, which will make things worse because no private school will have to accept those vouchers. Thus, private schools will continue to pick and choose which children with disabilities they want to serve. At the same time, children will lose their federally protected special education rights. And some special needs voucher supporters want to create segregated schools for children with disabilities, further undermining efforts to integrate these children into schools and communities.